Scottish Court of Session Decisions

Lord Justice-Clerk—The holograph writing which Mrs Gore Booth left in addition to her settlement must be read along with it, for there is express reference to her will, and a statement of the custody in which it lies, and what is done by the holograph writing is declared to be “in addition to this.” The clause in which in the holograph writing she speaks of making Joana her residuary legatee, when read in connection with the words which are associated with it, are not in my view words of residuary bequest in a strict sense, but must be read as referred to the special subject she was dealing with, viz., “clothes, moveables, and personal property not otherwise disposed of.” It is, I think, of the residue of such things and not of her general estate she is writing.

Lord Trayner—The fourth question is the only one which I have felt attended with any difficulty. If there had been no clause disposing of residue in Mrs Gore Booth's settlement executed on 6th November 1877, it would have been difficult to maintain that the words used in the codicil (or testamentary writing) dated 7th January 1884 did not sufficiently constitute a bequest of the whole residue of Mrs Gore Booth's moveable property in favour of her daughter Joana. If these words were regarded as sufficient to carry the residue to Joana, then they would operate (so far as regards moveable property) as a revocation of the first residuary bequest. But on consideration I am satisfied that the clause in the writing of January 1884 was not intended to operate, and did not operate, as a revocation of the residuary bequest contained in the prior settlement. In the first place, the opening words of the codicil indicate that its purpose was, not to alter the prior settlement, but merely to add to it. Secondly, the codicil is chiefly occupied with the enumeration of gifts or legacies of articles of personal adornment or for personal use. In the course of this enumeration there occurs the legacy “to my dear daughter Joana, my dressing-box and all my trinkets not mentioned above,” and then follow the words “whom also I make my residuary legatee, to whom shall belong all my clothes, moveables, or personal property not otherwise disposed of, as well as furnishing and plenishing of my house 88 Clyde Street, Helensburgh.” Now, it is obvious that if this had been intended to make Joana residuary legatee of the moveable estate not otherwise disposed of, it was unnecessary to leave her specially the dressing-box “and all my trinkets not mentioned above,” or the furniture and plenishing of the house in Helensburgh. These would have fallen within the residue without special mention, not having been otherwise disposed of. But if this provision was intended to bequeath to Joana all the trinkets not specially disposed of, all the clothes, moveables, or personal property (personal property, that is, not in the technical sense of personalty, but property for personal use or ornament) not otherwise disposed of, and also the plenishing of the house in Helensburgh, then this clause was necessary to carry out the testator's intention, for without it, all that she was thus giving and wished to give as residue to Joana would have been included in the prior residuary bequest to her five sons. Thirdly, the clause in the codicil could not in any view have revoked the prior residuary bequest entirely, seeing that it only referred to moveables, whereas the prior residuary bequest included heritage as well as moveables. I think, therefore, that the fourth question must be answered in the negative.

Lord Young—I concur.

The Lord Justice-Clerk read the following opinion of Lord Moncreiff, who was absent:—On the questions argued to us I am of opinion as follows: … 3. The holograph writings of Mrs Gore Booth do not revoke the residue clause in her settlement. The writing on pp. 42, 43, is expressly stated to be “in addition to” the will previously executed; and the collocation in which the words “whom also I make my residuary legatee” occur, confine the bequest to corporeal moveables ejusdem generis with those personal moveables which are expressly bequeathed to Joana herself and others both before and after the words quoted. Indeed, the expression is interpreted by the words which immediately follow “to whom” (that is, Joana as residuary legatee) “shall belong my clothes, moveables, or personal property not otherwise disposed of.”