Scottish Court of Session Decisions

Adam Currie died on 8th February 1904 leaving a holograph trust-disposition and settlement dated 27th October 1903. He was never married, and his death occurred suddenly when he was away from home on a visit. The said trust-disposition and settlement was found, along with an unsigned, uninitialed, and undated holograph note or jotting containing a list of certain names, and sums set opposite thereto, in his travelling bag, which he had with him at the time of his death.

When found, the trust-disposition and settlement had upon it certain deletions and alterations in pencil. The holograph note or jotting, which contained a recapitulation of the legacies contained in the settlement, also had upon it alterations and deletions, both in pencil and in ink, corresponding to those made on the settlement. The alterations on both documents, so far as they were in writing, were holograph of the testator, and it was presumed that the other alterations and deletions on the documents were also made by the testator.

Under the settlement as it originally stood the testator's brother William Currie was named therein as one of the trustees and as residuary legatee. William Currie predeceased the testator unmarried on 20th November 1903. The deletions and alterations on the settlement, inter alia, included the deletion, by scoring out in pencil, of the name of the said William Currie from among the trustees, and also the deletion of the name of William Currie as residuary legatee.

Questions arose among the parties interested in the succession as to whether the settlement of the testator was valid and effectual, and, if so, whether it ought to receive effect as it originally stood, without any alteration or deletion, or whether the alterations and deletions fell to receive effect as part of the testamentary disposition of the testator.

A special case was presented for the opinion of the Court in order that these questions might be settled. There were five parties to the special case. The contentions of the several parties appear from their respective arguments ut infra.

The questions of law were—“(1) Is the said trust-disposition and settlement valid and effectual? (2) If the preceding question be answered in the affirmative, do the deletions and alterations on the said trust-disposition and settlement, or any and which of them, fall to receive effect in construing the testamentary

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writings of the deceased Adam Currie?”

Argued for the first, second, and third parties—The trust-disposition and settlement was valid and ought to be read as it originally stood before any alterations were made upon it. The pencil alterations being unsigned and unauthenticated, were merely deliberative, and did not express any completed intention of the testator— Pattison's Trustees v. Edinburgh University, November 9, 1888, 16 R. 73. The present case was distinguished from the case of Lamont's Trustees v. Magistrates of Glasgow, March 10, 1887, 14 R. 603, 24 S.L.R. 426, where the testator specially directed that any separate writings however informal should receive effect. Here there was no evidence of the testator's completed intention to alter his settlement. The holograph note or jotting referred to was not indicative of any such completed intention, and further it was not signed or authenticated, and thus could not receive effect— Hamilton's Trustees v. Hamilton, December 4, 1901, 4 F. 266, 39 S.L.R. 159.

The fifth party concurred in the argument for the first, second, and third parties.

Argued for the fourth party—The alterations and deletions showed that he did not intend the settlement to subsist as an operative will. Alternatively, the deletions and alterations on the trust - disposition and settlement ought to receive effect in construing the deed. The present case was ruled by the case of Lamont's Trustees, supra The lace of the notes in Lamont's Trustees was ere supplied by the holograph note or jotting. In the case of Pattison's Trustees, supra, there was an ordinary probative deed, while here the trust-disposition and settlement was holograph of the testator.

[At the close of the discussion Lord Young intimated that he was not prepared to express an opinion without further consideration, and the parties thereupon agreed to accept the decision of the other three Judges.]