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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stenhouse v. Stenhouse [1922] ScotLR 297 (11 March 1922)
URL: http://www.bailii.org/scot/cases/ScotCS/1922/59SLR0297.html
Cite as: [1922] ScotLR 297, [1922] SLR 297

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SCOTTISH_SLR_Court_of_Session

Page: 297↓

Court of Session Inner House First Division.

Saturday, March 11. 1922.

59 SLR 297

Stenhouse

v.

Stenhouse.

Subject_1Succession
Subject_2Testament
Subject_3Holograph Writing
Subject_4Subscription — Adoption — Adoption of Unsubscribed Writing.
Facts:

An unsubscribed document in the form of a will holograph of the deceased was found in his repositories inside a closed envelope on the back of which was written, also in deceased's handwriting, the words “Will & Testemony off Joseph Stenhouse for Mr Sturrock, S.S.C., Dalkeith.” The document, which was headed “18 Westfield Park, Dalkeith, Will & Testemony of Joseph Stenhouse, April 1915,” disposed of his whole estate. Held that the holograph docquet on the envelope did not constitute a subscribed adoptive writing, and that it was incapable therefore of supplying by adoption the lack of subscription of the holograph document it referred to so as to make the latter a valid testamentary writing.

Headnote:

Joseph Stenhouse and others, first parties, James Stenhouse and others, second parties, and Elizabeth Stenhouse and another, third parties, presented a Special Case to the Court for the determination of certain questions as to the effect of an unsubscribed document, holograph of the late Joseph Stenhouse, found in his repositories.

The Case stated—“1. Joseph Stenhouse, who resided at No. 18 Westfield Park, Dalkeith, died there on 28th March 1921. He was never married, and was predeceased by all his brothers and sisters, none of whom left any issue except his brother Andrew. The parties of the first part are the whole children of the said Andrew Stenhouse, save Margaret and Robert, both of whom predeceased the said deceased Joseph Stenhouse. Margaret left no issue, and Elizabeth Stenhouse or Anderson, a daughter of Robert, is a party of the first part. The parties of the first part with the addition of Jane Stenhouse or Bennie, party of the second part, the remaining child of the said deceased Robert Stenhouse, are the whole heirs in mobilibus of the said deceased Joseph Stenhouse. The parties of the second part are the whole beneficiaries under the document after mentioned,

Page: 298↓

and the parties of the third part are two of these beneficiaries. 2. In a locked chest, the key of which was in the possession of the said deceased Joseph Stenhouse, in his house at No. 18 Westfield Park aforesaid, there was found by John Stenhouse, nephew of the deceased, after deceased's death, a sealed envelope on which was written in his own handwriting ‘Will & Testemony off Joseph Stenhouse for Mr Sturrock, S.S.C., Dalkeith.’ Prior to his death the deceased had informed the said John Stenhouse that he had made a will in favour of his grandnephews and grandnieces, and that the said John Stenhouse would find said will in said locked chest, the key of which deceased carried in his pocket. On being opened the envelope was found to contain a document, also holograph of the said deceased Joseph Stenhouse, written in copying ink pencil and dated ‘April 1915.’ The document contained certain deletions and alterations also made with copying ink pencil. The document itself was not subscribed, and the deletions and alterations were not authenticated in any way.… It was in the following terms

‘18 Westfield Park Dalkeith

Will & Testemony of Joseph Stenhouse April 1915

‘Should I be taken away before my sister Joan Stenhouse 20 30

I leave to her for life in 15 shillings a-week ( one word here delete

and undecipherable) House rent & taxes also off my estate

the rest to be diveded between

James Stenhouse son of Joseph Stenhouse

(James one share

(twins Stenhouse sons of Andrew Stenhouse

(John divided

Joseph Stenhouse son of John Stenhouse

Margret Stenhouse daughter of Tomas Stenhouse

Mary Stenhouse daughter of James Stenhouse

Jane Stenhouse daughter of the late Robert Stenhouse

one only if married

that Jane get double share if not married all to be 21 years of age before they get it

This to given to Mr Sturrick S.S.C. Dalkeith

which will carry through all transactions also

Margaret Stenhouse Daughter of John Stenhouse

Eliza beth Stenhouse Daughter of Joseph Stenhouse

these 2 get one share each

My money is in War Loans ending 1923 April Commershall Bank

a small sum in the same Bank

that it cannot be divided till my sister death be

Watch & Gold Chain to given to Joseph Stenhouse

Four words here delete and undecipherable. ’ No other writing of a testamentary character by the said deceased Joseph Stenhouse has been found.… In the same locked chest there was found a sealed envelope on which was written in the said deceased Joseph Stenhouse's handwriting ‘Private, Mr Sturruck, S.S.C., Dalkeith.’ On being opened it was found to contain (1) a certificate, No. 246,755 in name of Joseph Stenhouse of 18 Westfield Park, Dalkeith, gentleman, dated 18th July 1918, for £ 1000 registered £5 per cent. National War Bonds 1923, repayable 1st April 1923; (2) deposit-receipt, No. 8479, dated 13th December 1920, of the Bank of Scotland, Eskbank Branch, in name of Miss Joan Stenhouse and Mr Joseph Stenhouse, 18 Westfield Park, Eskbank, for £155 sterling, to be drawn by either or survivor of them; (3) deposit-receipt, No. dated 11th January 1921, of the Commercial Bank of Scot land, Limited, Dalkeith, in name of Mr Joseph Stenhouse, 18 West-field Park, Dalkeith, for £150 sterling; (4) a receipt, dated 3rd July 1918, by the agent of the said branch of the Commercial Bank of Scotland at Dalkeith, for an application for National War Bonds amounting to £1000 sterling, together with payment of a like sum by cheque; and (5) a printed notification from the chief accountant of the Bank of England, dated 18th July 1918, forwarding register certificate in respect of a sum of registered £5 per cent. National War Bonds 1923. There is no evidence other than before set forth of whether the said deceased Joseph Stenhouse intended the said document to receive effect as a testamentary writing or not.… 6. Questions have arisen between the parties as to the effect of the said document holograph of the said deceased Joseph Stenhouse. The parties of the first part contend that as the said document is not subscribed by the said deceased Joseph Stenhouse it is invalid as a testamentary writing.… 7. The parties of the second and third parts contend that the holograph writing of the said deceased Joseph Stenhouse is a valid testamentary disposition of his means and estate.…”

The questions of law included the following:—“1. In the circumstances above set forth is the said document found in the said deceased Joseph Stenhouse's repositories a valid testamentary writing? …”

Argued for first parties—Subscription was essential. It might be either direct or indirect, i.e., by adoption— Taylor's Executors v. Thom, 1914 S.C. 79, 51 S.L.R. 55. The fact that the writer had been altering the document from time to time indicated lack of finality. The docquet on the envelope was merely descriptive. Russel's Trustees v. Henderson, 11 R. 283, 21 S.L.R. 204, was a very special case and had been so treated in subsequent cases. The following additional authorities were cited:— Goldie v. Sheddon, 13 R. 138, 23 S.L.R. 87; Skinner v. Forbes, 11 R. 88, 21 S.L.R. 81; Foley v. Costello, 6 F. 365, 41 S.L.R. 286; France's Judicial Factor v. France's Trustees, 1 S.L.T. 126.

Argued for second parties—The docquet on the envelope was probative, and by adoption made the document it referred to a valid will. Prior to the case of Taylor's Executors v. Thom ( cit.) there was no doubt

Page: 299↓

that the law would have upheld this docquet as authenticating the will— Russel's Trustees v. Henderson ( cit.). The facts were very similar in the case of Murray v. Ruffel, 1910, 2 S.L.T. 388. The testator's ignorance of legal forms must also be kept in view, a fact which distinguished this case from Shiell v. Shiell, 1913, 1 S.L.T. 62. The case of Taylor's Executors was distinguishable by the fact that there the envelope was unsealed and did not bear a direction to the writer's lawyer.

 Judgment:

Lord President—A will derives its whole validity from being the finally concluded act of the testator, and where there is a doubt the question always is whether the document put forward as a will contains evidence showing that it constitutes such an act. Subscription is the proper evidence. A will being simply a direction or set of directions for the disposal of the testator's estate after his death, subscription of the document in which these directions are set down is unnecessary if in another writing which unmistakably identifies that document the testator designates and adopts it as containing his will. In that case the adoptive writing is really the will, and the document containing the directions plays the part of a schedule annexed to and incorporated with it. But if the adoptive writing is really to make the will, and therefore to constitute the finally concluded act, I think it follows from a number of decisions, some of which are not perhaps easy to reconcile, that it must contain the like evidence of being a finally concluded testamentary act as if the whole thing had been included in one document. The adoptive writing, in short, requires to be subscribed if it is to be effectual. To recognise any other rule would involve the risk of mistaking mere descriptive docquets and backings for testamentary acts with all their important consequences. The writing on the envelope in the present case only repeats the heading written at the top of the pretended will, and is incapable in my opinion of being construed as anything more than a descriptive docquet. it falls far short of constituting a subscribed adoptive writing.

Lord Mackenzie—I am of the same opinion. We are asked here to apply the principle of adoption. I am quite unable to do so, because I do not think there is enough to show that there was subscription of a document sufficient to adopt the informal writing.

Lord Skerrington—The principle of adoption is a very important and valuable one, but it should be applied with discretion, because otherwise the result might be to whittle away the rule that a testamentary writing must be subscribed.

In the present case the docquet on the envelope does not in my judgment raise any question of adoption.

Lord Cullen—The holograph writing within the envelope is not subscribed, and is not therefore a completed testamentary act. The contention of the second parties is that the holograph docquet on the back of the envelope supplies the lacking subscription. Putting aside any questions as to the due identification of the document to which the docquet refers, the docquet, on this contention, falls to be regarded as a will or testamentary writing, duly authenticated by subscription, whereby the deceased intended to adopt or incorporate by reference, as by way of a schedule, the holograph writing in question and so to make good indirectly the want of subscription in the latter. It is difficult to understand why the deceased, if minded to supply the defect of subscription of that writing, should have taken such a course instead of appending his subscription to it in the ordinary way. I am, however, unable to regard the docquet as such a testamentary writing. It appears to me to be merely of the nature of a backing, descriptive of the document to which it refers, leaving the legal qualities of the latter to speak for themselves.

The Court answered the first question of law in the negative.

 Counsel:

Counsel for First and Third Parties— Patrick. Agents— T. & J. C. Sturrock, Solicitors.

Counsel for Second Parties— W. A. Murray. Agent— A. N. Stephenson, S.S.C.

 1922

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