Scottish Court of Session Decisions

Peter Milne, retired farmer, Annerley House, Brechin, executor-dative of Miss Mary Ann Milne, Isla Bank Cottage, Brechin ( first party), Percival Waugh and others, Trustees of Bristo Place Baptist Church ( second parties), and the Rev. John Fraser and others, the ministers and elders forming the Kirk Session of the West United Free Church, Brechin ( third parties), and the said Peter Milne, as an individual, as sole next-of-kin of Miss Milne ( fourth party), presented a Special Case for the opinion and judgment of the Court.

The circumstances in which the case was presented were—Miss Mary Ann Milne, Isla Bank Cottage, Park Road, Brechin (the testatrix), died domiciled there on 3rd May 1911, aged 75 years. For the last twenty years of her life she resided alone except during the three months immediately prior to her death, during which time she was attended by a domestic servant. The testatrix was from time to time visited by friends and relatives. Her sole next-of-kin was her only surviving brother Peter Milne. The testatrix left certain testamentary writings. After the death of the testatrix the said writings were found by the first party on the day of the death of the testatrix in a closed envelope which was contained in a locked desk found in a drawer of a chest of drawers in one of the rooms of her house. The key of the desk was found in another drawer of the same chest. The envelope was gummed up and addressed in the handwriting of the testatrix as follows—“To Mr Peter Milne, Annerley House, South Esk Street, Brechin.” The envelope was opened by the first party and found to contain the said writings. [The originals of the writings and the envelope in which they were found were made available to the Court at the hearing of the case.] The flap of the envelope had been lost. The writings were holograph of the testatrix.

The holograph testamentary writings contained the following passages:— “1909

also to the Babtist Denomination—

To the B Congregation worshipping at present in B. Church Bristo Place, Edinburgh

(of which I am a member) I bequeath £50, Fifty

pounds sterling to aid in maintaing Gospel

Ministry there, & also £50, Fifty pounds to Building fund for proposed New Church—

Per Treasurer.

It is also my express wish that the Residue of my Estate be equally given to West Church Congregation—Brechin to aid in Home & foreign—

mission work—according as Minister & Session think best. The other half to be given to the B. Congregation, before mentioned at Bristo Place Edinburgh—

also

for Missions at Home & abroad—For the Advancement of Christ's Kingdom

Mary Ann Milne.

Per.—The West Church Session Brechin I bequeath to the, now, Central fund—£100, one hundred pounds, as, a Thank—offering for the Gospel—Ministry of the Late Rev, Dr Foote & Rev, John Fraser—Colleague & successor to the former

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To the Mission for the Jews £50 fifty

pounds

To the Foreign Mission Fund £50 fifty pounds

pounds

To the Zenana Mission 5 five pounds per— Mrs Fraser the Manse or Treasurer, & for clothing to poor of W,C, Congregation £5 pounds per Mrs Fraser

To Brechin Infirmary £50 fifty Pounds

per Treasurer

To Y. W,C, Association 5 five pounds per [Treasurer

To Mary Ann Young—Living—with her Father & Mother at St James Place,

Brechin

(her Father James Young late of Westbank)

ten pounds

M. A. Milne.

August 1910

I bequeath to the West Church—Brechin My House, or property, in Macgregor St. To aid in maintaining Gospel Ministry— there—special to help—with Pastor's income.

M. A. Milne.

[The words italicised above were scored through in the testamentary writings.

The holograph testamentary writings, when found by the first party, were in the same condition as presented to the Court, and contained the scorings or deletions. Apart from any inference which the Court might draw, there was no evidence to show when or by whom these scorings or deletions were made.

The testatrix was connected with the congregation now known as the West United Free Church, Brechin, during the whole of her life, and she was a member of that church up to the date of her death. Her ordinary residence was in Brechin, and while there she regularly attended the services of the said church. For a considerable number of years the testatrix worked as a Bible woman amongst the poor of Brechin. Her salary as Biblewoman was furnished either by the said church or by Miss Foote, the daughter of one of the ministers of that church. In 1885 a brother of the testatrix, who was in the employment of the Indian Government, died leaving a considerable estate, which was divided equally between the testatrix and the fourth party, and after succeeding to that money the testatrix gave up her position as Biblewoman and lived on her own means. About eighteen years ago, in consequence of views which she came to hold upon the doctrine of baptism, she joined the Bristo Place Baptist Church in Edinburgh, there being no Baptist Church in Brechin. She continued a member of that church also till her death, and was in the habit of going to Edinburgh twice a year, staying there over two weeks, and while there attending Communion and other services in connection with the church.

The estate left by the testatrix, besides a dwelling-house in Macgregor Street, Brechin, consisted of moveables, as given up in the inventory, at £2457, 9s. 8d. After paying the various personal and specific legacies bequeathed by the testatrix, it was estimated that there would be a sum of over £1000 falling to be dealt with as residue.

The second parties contended that the bequest by the testatrix of £50 to the building fund of the Bristo Place Baptist Congregation, Edinburgh, and of one-half of the residue of her estate to the said congregation for missions at home and abroad were valid and effectual and ought to receive effect, notwithstanding the scorings or deletions of the passages containing these bequests, inasmuch as the said scorings or deletions were not authenticated in any way.

The third parties contended that in the circumstances, and in the absence of any evidence that the scorings or deletions were made by anyone other than the testatrix, these must be presumed to have been made by the testatrix herself, and must be given effect to. They also contended that the whole residue of the estate of the testatrix fell to the West United Free Church Congregation, Brechin.

The fourth party contended that effect must be given to the deletions in the testamentary writings of the testatrix, in respect that these deletions must be presumed to have been made by the testatrix herself, and further, that the bequest of. half of the residue thereby cancelled fell into intestacy.

The questions of law for the opinion and judgment of the Court were—“(1) In the circumstances ought the scorings or deletions in the testamentary writings of the testatrix to receive effect as cancelling the bequests so scored or deleted? (2) In the event of the Court answering the first question in the affirmative, does the half of the residue originally destined to the Bristo Place Baptist Congregation, Edinburgh ( a) fall into intestacy? or ( b) accrue to the West United Free Church Congregation, Brechin?”

Argued for the fourth party—(1) The deletions ought to receive effect. They admitted that in accordance with the opinion of Lord M'Laren in Pattison's Trustees v. The University of Edinburgh, August 11, 1888, 16 R. 73, at p. 76, evidence was required that deletions in a will were made by the testatrix, but here from the admitted fact that the will was found in a closed envelope in a locked desk of the testatrix the reasonable inference to be drawn was that the alterations were made by the testatrix— Nasmyth and Others v. Hare and Others, 1821. 1 Sh. Ap. 65, Eldon, L.Ch., at p. 77; Lamond v. Magistrates of Glasgow, March 10, 1887, 14R. 603, 24 S.L.R. 426; Crosbie v. Wilson, June 2, 1865, 3 Macph. 870, Lord Justice-Clerk Inglis at 877; Winchester v. Smith, March 20, 1863, 1 Macph. 685, Lord Cowan at 695. (2) Half of the residue fell into intestacy. There was clearly a severance of the residue into two halves. It was permissible to look at the deleted bequest to ascertain what the testator had originally intended—The

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Magistrates of Dundee v. Morris, May 1, 1858, 3 Macq. 134, Lord Cranworth at 164, Lord Wensleydale at 171.

Argued for the third parties—(1) The deletions ought to receive effect. On this point they adopted the argument of the fourth party. (2) There was a good bequest of the whole residue to the West Church. There was sufficient explanation of the word “equally” as meaning between home and foreign mission work. Alternatively “equally” should be held pro non scripto.

Argued for the second parties—The deletions should be disregarded. (1) Those who maintained that the deletions should receive effect must discharge the onus of showing that the deletions were made by the testatrix— Pattison's Trustees ( cit. sup.). The circumstances here of the will being in a gummed envelope and in a locked desk were not sufficient to discharge that onus. (2) Here the usual authentication of initialling was absent, and even if the deletions were made by the testatrix, it must be proved that they were the expression of her final intention and were not merely deliberative— Petticrew's Trustees v. Pettigrew, December 6, 1884, 12 R. 249, Lord Craighill at 252, 22 S.L.R. 171; Currie's Trustees v. Currie, December 24, 1904, 7 F. 364, 42 S.L.R. 297; Hamilton's Trustees v. Hamilton, November 28, 1901, 4 F. 266, 39 S.L.R. 159; Lamont v. Magistrates of Glasgow ( cit. sup.); Parker v.Matheson and Others, March 9, 1876, 13 S.L.R, 405; Jarman on Wills (6th ed.), pp. 156 and 161; Lord M'Laren on Wills, p. 413 (quoting Jarman).