COURT OF SESSION.

Thursday, October 25, 1923.

SECOND DIVISION.

[Lord Constable, Ordinary. WILSON v. HOVELL. Succession - Testament-Holograph Writing - Whether Deliberative or Final · Extrinsic Ambiguity Competency of Extrinsic Evidence.

Evidence Extrinsic Evidence Competency-Holograph Will ex facie ValidAmbiguity in Holograph Covering Letter.

A lady sent a holograph document, dated October 1912, which ex facie was valid as a will, along with a covering letter, to her solicitor. The letter, which was dated 26th November 1916, stated, inter alia-"What I enclose along with this note is the substance of what I have twice written out on notepaper, once two years before Oct./12, and again about that date, and I wish the date Oct./12 to be retained. . . . I don't wish this will lengthened or stretched out in any way further than is absolutely necessary to make it legal." The solicitor, treating the document as notes, drafted a trust - disposition and settlement, which he forthwith sent her. The lady died in October 1921 without having done anything further. In an action of declarator that the document in question was not a valid testament a proof before answer was allowed and led. Held (1) that in respect that an ambiguity was created by the terms of the covering letter as to the deceased's testamentary intentions, extrinsic evidence was admissible to clear up that ambiguity; (2) that the covering letter as interpreted by the evidence adduced was sufficient to deprive the document in question of its prima facie testamentary character.

VOL. LXI.

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Process - Reclaiming Note—Competency— Proof before Answer Competency of Objecting to Allowance of Proof in Reclaiming Note against Final Interlocutor. In an action of declarator as to the validity of a will the Lord Ordinary allowed a proof before answer. After proof was led, and after the Lord Ordinary had granted decree as craved, the defender reclaimed and maintained that the proof allowed was incompetent.

Opinion per the Lord Justice-Clerk (Alness) that the defender was not barred by the fact that he had not reclaimed against the former interlocutor allowing proof before auswer from stating his objection at the later stage. Andrew Colville Wilson, doctor of medicine, Chesterfield, Derbyshire, pursuer, brought an action against (first) Flora Jane Hovell, Sydney, New South Wales, and (second) James Patterson Wilson, doctor of medicine, Sydney, New South Wales, for his interest, defenders, to have it found and declared that the deceased Mrs Christina Patterson or Wilson, who resided sometime at Redburn, Johnstone, and thereafter at Thorn House there, left no valid and effectual testamentary directions, and that her whole means and estate, heritable and moveable, fell accordingly to be divided according to the rules of intestate succession.

The first-named defender lodged defences. The parties averred, inter alia-" (Cond. 3) On 26th November 1916 the deceased wrote to Mr John B. Stirling, solicitor, Johnstone (who had been law agent to her and her husband for twenty years), a holograph letter, enclosing a document which 'she described in the said covering letter as 'the substance of what I have twice written out on notepaper, once two years before Oct. 12, and again about that date,' and giving various directions for the preparation of a settlement. The enclosed document, which was holograph of the deceased, was in the following terms:-' Chesterfield,

NO. I.

Oct. 1912.-I, Christina Wilson, leave all the property heritable or personal I may pos sess, or that may in time be left to me, to my friend and companion, Flora Jane Hovell, for her lifetime. At her death all property to be sold and revert to and be equally divided between what family my second son may have. The selfish treatment I have from time to time received from my two sons, coupled with the preference my eldest son has for inferior women, has caused my decision CHRISTINA WILSON.' The document and covering letter were sent by the deceased to Mr Stirling merely as instructions for the preparation of her will. The aspersions against the deceased's sons contained in them are entirely devoid of foundation. Further, in October 1912 her younger son was not married. He was not married until 15th April 1916, and there has been no issue of the marriage. The said Flora Jane Hovell had in October 1912 been out of the deceased's employment for nearly two years. (Ans. 3) The said holograph document and covering letter are referred to. Admitted that in October 1912 the younger son of deceased was not married, that he was married at or about the date mentioned, that there has been no issue of the marriage, and that this defender has been out of the deceased's employment for nearly two years prior to October 1912. Denied that said holograph document was merely instructions for a will. Quoad ultra not known and not admitted. (Cond. 4) Mr Stirling on receiving said letter and document understood that they were sent to him merely as instructions for the preparation of the deceased's will. On that understanding he prepared, and on 30th November 1916 forwarded to the deceased, a draft settlement in accordance with her foresaid instructions, but the settlement was never executed by her and no reply was received from her. On 10th August 1917 she called on Mr Stirling, and referring to her younger son's marriage stated that the draft would not now do. She did not, however, give definite instructions as to her altered wishes. The interview proceeded on the footing that the deceased had not then made a will. (Ans. 4) It is admitted that said draft, which is referred to, was never executed as a will by the deceased, and believed to be true that deceased did not reply to Mr Stirling. Quoad ultra not known and not admitted. So far as this defender is aware the deceased neither at said date of 10th August 1917 gave instructions for any alterations in her settlement, nor ever executed any testamentary deed subsequently to that referred to in article 3 of pursuer's condescendence. (Cond. 5) On 28th September 1921 the deceased approached Mr J. Greig Milne, of Messrs Anderson & Allan, writers, Glasgow, and a correspondence ensued in which she sought and received advice as to the extent to which she was free to dispose of her entire estate inter vivos or mortis causa. It proceeded on the footing that the deceased had not then made her will. (Ans. 5) Said correspondence is referred to."

The pursuer pleaded-"1. The holograph document, bearing to be dated October 1912, being intended by the deceased merely as a memorandum of instructions for the preparation of a will, and having no testamentary effect, decree should be pronounced in terms of the conclusions of the summons. 2. The deceased having left no testamentary writing, decree should be pronounced as concluded for."

The defender pleaded-"2. The said holograph document being truly subscribed by the deceased, and being the completed testamentary settlement of her estate, the pursuer's plea to the contrary should be repelled and the defenders assoilzied. 3. The said holograph document being habile to vest the defender in the liferent of the deceased's estate, she is entitled to absolvitor. 4. The said holograph document presenting, ex facie, no indication of being other than the valid will of the deceased, can only be impugned by a probative writing of the deceased of equal solemnity and of later date, and proof should be limited to the production of such a document."

On 23rd November 1922 the Lord Ordinary (CONSTABLE) allowed a proof before answer.

The facts of the case and the import of the evidence appear from the opinion of the Lord Ordinary, who on 8th March 1923 sustained the pleas - in-law stated for the pursuer, and found and declared in terms of the declaratory conclusions of the summons. Opinion. The pursuer in this case concludes for declarator that his mother, Mrs Christina Wilson, left no valid and effectual testamentary directions, and that her estate falls to be divided according to the rules of intestate succession. Mrs Wilson died in 1921, survived by two sons, of whom the pursuer is the elder, and the purpose of the action is to impugn the testamentary validity of a document holograph of Mrs Wilson, purporting to leave her whole estate in liferent to Miss Flora Hovell, the compearing defender, who is a stranger in blood, and on her death to be divided equally between the family of Mrs Wilson's second son.

"The document is quoted in full in Condescendence 3. On 26th November 1916 it was enclosed by the deceased in the following letter to her solicitor:'4 Cross St.,

'Chesterfield, 26th Novr. 1916.

'Mr Stirling.

'Dear Sir,-What I enclose along with this note is the substance of what I have twice written out on notepaper, once two years before Oct./12, and again about that date, and I wish the date Oct./12 to be retained. I see no reason to change my mind. If it is absolutely necessary. If it is absolutely necessary that my two sons get a fourth part each of what money or shares I may have to make my will legal, then they must have it. But seeing that I am living in England, no matter how, I don't think it is necessary to give it them, but you can find out. This I want all made correct at the earliest date. You did not make much of Currie. Your letter was not a reply to mine. I did not want the quarter

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interest returned. I wanted a fixed term for it to remain, and you give none. don't wish this Will lengthened or stretched out in any way further than is absolutely necessary to make it legal. I give my reason for what I have done. I wish that retained in the Will, so that my two sons, if alive, may be reminded. If there is any further information you must have, then let me know at once and I will try to get it for you. I don't wish this Will lengthened or stretched out in any way further than is absolutely necessary to make it legal. I give my reason for what I have done. I wish that retained in the Will so that my two sons, if alive, may be reminded. I have repeated this to prevent mistake.Yours faithfully, 'C. WILSON.'

The

"In the course of a discussion in the procedure roll it was maintained for the defender that the action should be dismissed de plano on the ground that the document was in itself unexceptionable and clearly expressive of completed testamentary intention; but it appeared to me that a doubt as to such intention was created by the accompanying letter above quoted, and I therefore allowed a proof before answer of various averments for the pursuer regarding the history of the document, the actings of Mrs Wilson, and her relations with her family. result of the authorities seemed to me to be that where doubt as to completed testamentary intention arises on the face of a document, evidence of all kinds is admissible to clear it up-Munro v. Coutts, 1813, 1 Dow 437; Scott v. Sceales, 2 Macph. 613; Lowson v. Ford,4 Macph.631; Forsyth's Trustees v. Forsyth, 10 Macph.616; Robb's Trustees v. Robb, 10 Macph. 692; Hamilton v. White, 8 R. 940, 9 R. (H.L.) 53; Sprot's Trustees v. Sprot, 1909 S.C: 272-and I thought that the same principle was applicable where the doubt was created by a holograph letter contemporaneous with the execution and delivery of the document. I had some doubts about the relevancy of the averments in Condescendence 5; but having regard to the authorities, I thought that I was not warranted in excluding them from the proof.

The result of the proof, which was confined to evidence for the pursuer, was as follows:-The pursuer's father, who was resident in Johnstone, Renfrewshire, died in 1904, leaving his whole estate to his widow, and his two sons, who were both then qualified medical practitioners, made no claim on the estate. About 1905 the pursuer acquired a medical practice in Renton, Dumbartonshire, where his mother went to live with him. She paid the rent and he paid all other expenses. In the beginning of 1911 the pursuer purchased a house and medical practice in Chesterfield, Derbyshire, and his mother shortly thereafter went to live with him there and remained in his house till she died in 1921. During that time, including a period of four and a-half years when he was away on war service, the pursuer bore all the household expenses. His brother went to practise in Australia many years ago, and married there

in 1916, but has no family. Mrs Wilson was always strongly opposed to her sons, and especially to the pursuer, being married, and she even went the length of objecting to his visiting professionally houses where there were marriageable ladies. This does not rest only on the evidence of the pursuer, but is confirmed by Mr Stirling, the family solicitor, who vainly remonstrated with Mrs Wilson on her unreasonable and selfish attitude, In point of fact the pursuer, who is forty-six, remained unmarried till his mother's death though he was then on the point of being married.

"The defender, Miss Hovell, was a servant with the pursuer and his mother for about two years before they left Renton, and she then went to Australia, where she is still resident.

"On 22nd July 1915 Mrs Wilson wrote to Mr Stirling, the family solicitor in Johnstone, saying that she wished to see him when she went to Johnstone, and remark. ing I wrote a letter a few years back stating my wishes, but I wish to make sure that it will stand law. I find now more reason to hold to my first wish than to change.' Mr Stirling wrote in answer suggesting that she might put her wishes in writing and send them to him, so that he might put them into appropriate shape; but she neither replied nor visited him that year. On 2nd August 1916, however, she called on him and discussed the making of a will. The entry in his ledger is-Long conference with you on proposal for a settlement-1 hour.' She was specially interested to ascertain the extent of her sons' legal rights. Mr Stirling had difficulty in getting definite instructions from her, and when she left he asked her to note down in writing what she desired and send it to him, whereupon he would send her a draft will for her consideration. The next communication which he received from her was the letter of 26th November 1916 above quoted with the document now in question. Treating the document as the notes which he had expected, Mr Stirling drafted a trust-disposition and settlement, which he sent her with a letter, dated 30th November 1916. This draft she never returned to him, but he kept a copy of it in the form of a rough draft. In substance the draft gives effect to the bequest expressed in the document, but it adds a bequest to the sons of their legal shares of the testator's estate, a reference to the document for the reasons for the restriction of her sons' interests, and a nomination of trustees and executors. In the accompanying letter Mr Stirling explains that the bequest may be omitted, but he puts the nomination of trustees and executors as a necessity. Mrs Wilson did not reply to this letter, but on 10th August 1917 she again called for Mr Stirling with the draft in her hands and explained that it would not now do because Miss Hovell was in bad health and could no longer act as her companion, and also because her second son was married. She left without giving any further instructions on the footing that she would consider the matter further and write Mr Stirling with the

Oct. 1912.-I, Christina Wilson, leave all the property heritable or personal. I may possess, or that may in time be left to me, to my friend and companion, Flora Jane Hovell, for her lifetime. At her death all property to be sold and revert to and be equally divided between what family my second son may have. The selfish treatment I have from time to time received from my two sons, coupled with the preference my eldest son has for inferior women, has caused my decision: CHRISTINA WILSON.' The document and covering letter were sent by the deceased to Mr Stirling merely as instructions for the preparation of her will. The aspersions against the deceased's sons contained in them are entirely devoid of foundation. Further, in October 1912 her younger son was not married. He was not married until 15th April 1916, and there has been no issue of the marriage. The said Flora Jane Hovell had in October 1912 been out of the deceased's employment for nearly two years. (Ans. 3) The said holograph document and covering letter are referred to. Admitted that in October 1912 the younger son of deceased was not married, that he was married at or about the date mentioned, that there has been no issue of the marriage, and that this defender has been out of the deceased's employment for nearly two years prior to October 1912. Denied that said holograph document was merely instructions for a will. Quoad ultra not known and not admitted. (Cond. 4) Mr Stirling on receiving said letter and document understood that they were sent to him merely as instructions for the preparation of the deceased's will. On that understanding he prepared, and on 30th November 1916 forwarded to the deceased, a draft settlement in accordance with her foresaid instructions, but the settlement was never executed by her and no reply was received from her. On 10th August 1917 she called on Mr Stirling, and referring to her younger son's marriage stated that the draft would not now do. She did not, however, give definite instructions as to her altered wishes. The interview proceeded on the footing that the deceased had not then made a will. (Ans. 4) It is admitted that said draft, which is referred to, was never executed as a will by the deceased, and believed to be true that deceased did not reply to Mr Stirling. Quoad ultra not known and not admitted, So far as this defender is aware the deceased neither at said date of 10th August 1917 gave instructions for any alterations in her settlement, nor ever executed any testamentary deed subsequently to that referred to in article 3 of pursuer's condescendence. (Cond. 5) On 28th September 1921 the deceased approached Mr J. Greig Milne, of Messrs Anderson & Allan, writers, Glasgow, and a correspondence ensued in which she sought and received advice as to the extent to which she was free to dispose of her entire estate inter vivos or mortis causa. ceeded on the footing that the deceased had not then made her will. (Ans. 5) Said correspondence is referred to."

It pro

The pursuer pleaded-"1. The holograph document, bearing to be dated October 1912, being intended by the deceased merely as a memorandum of instructions for the preparation of a will, and having no testamentary effect, decree should be pronounced in terms of the conclusions of the summons. 2. The deceased having left no testamentary writing, decree should be pronounced as concluded for."

The defender pleaded-"2. The said holograph document being truly subscribed by the deceased, and being the completed testamentary settlement of her estate, the pursuer's plea to the contrary should be repelled and the defenders assoilzied. 3. The said holograph document being habile to vest the defender in the liferent of the deceased's estate, she is entitled to absolvitor. 4. The said holograph document presenting, ex facie, no indication of being other than the valid will of the deceased, can only be impugned by a probative writing of the deceased of equal solemnity and of later date, and proof should be limited to the production of such a document."

On 23rd November 1922 the Lord Ordinary (CONSTABLE) allowed a proof before answer.

The facts of the case and the import of the evidence appear from the opinion of the Lord Ordinary, who on 8th March 1923 sustained the pleas - in-law stated for the pursuer, and found and declared in terms of the declaratory conclusions of the summons.

Opinion. "The pursuer in this case concludes for declarator that his mother, Mrs Christina Wilson, left no valid and effectual testamentary directions, and that her estate falls to be divided according to the rules of intestate succession. Mrs Wilson died in 1921, survived by two sons, of whom the pursuer is the elder, and the purpose of the action is to impugn the testamentary validity of a document holograph of Mrs Wilson, purporting to leave her whole estate in liferent to Miss Flora Hovell, the compearing defender, who is a stranger in blood, and on her death to be divided equally between the family of Mrs Wilson's second son.

"The document is quoted in full in Condescendence 3. On 26th November 1916 it was enclosed by the deceased in the following letter to her solicitor:

'Mr Stirling.

'4 Cross St., Chesterfield, 26th Novr. 1916.

If it

Dear Sir,-What I enclose along with this note is the substance of what I have twice written out on notepaper, once two years before Oct./12, and again about that date, and I wish the date Oct./12 to be retained. I see no reason to change my mind. If it is absolutely necessary. is absolutely necessary that my two sons get a fourth part each of what money or shares I may have to make my will legal, then they must have it. But seeing that I am living in England, no matter how, I don't think it is necessary to give it them, but you can find out. This I want all made correct at the earliest date. You did not make much of Currie. Your letter was not a reply to mine. I did not want the quarter