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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baird's Trs. V Baird [1955] ScotCS CSIH_3 (24 March 1955)
URL: http://www.bailii.org/scot/cases/ScotCS/1955/1955_SC_286.html
Cite as: 1955 SC 286, [1955] ScotCS CSIH_3

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JISCBAILII_CASE_SCOT_PROPERTY_TRUSTS_SUCCSESSION

24 March 1955

Baird's Trustees
v.
Baird

LORD PATRICK'S OPINION.—[After the narrative quoted supra]—The daughter, Jane Watson Baird, claims the £1666, 19s. 4d., with interest to date, as having been validly bequeathed to her. The daughter of the predeceasing son contests that claim. The question is whether the order form can receive effect as a duly authenticated testamentary writing. No question of the intention of Mrs Baird arises at this stage. The authorities contain many examples of writs which were held to be invalidly executed as testamentary writings, although the intention of the makers to dispose of their property mortis causa by the writs was plain.

Wills are one of the class of writings which, to be effective, must be authenticated in manner prescribed by law. In the case of holograph wills the requirements of authentication are prescribed by the common law. The order form is not, of course, a holograph writ. In the case of wills not holograph of the granter these requirements are dictated by a series of statutes. As Lord Dunedin said in Walker v. Whitwell, 1916 S C (H L) 75, at p. 79:

"By statute various requisites are made necessary, and these requisites are always spoken of as solemnities. A deed without the requisite solemnities is not an authenticated deed."

Of the solemnities subscription is of the first importance. It has been so since the earliest statute dealing with the authentication of writs, the Act 1540, cap. 117. No other manner of signing a will can replace subscription as a solemnity. As Lord Trayner said in Foley v. Costello, (1904) 6 F. 365, at p. 370:

"No subscription, no will—and to admit the consideration of facts and circumstances to modify that rule would be very inexpedient and dangerous."

The dictum is quoted with approval by the Lord President and Lord Dundas in Taylor's Executrices v. Thom, 1914 S. C. 79.

Now, the order form is not subscribed by the granter and the witnesses in the literal sense of the term. The requirement has always been interpreted as meaning that these signatures shall come at the end of the body of the deed, and no case has been found in which the statutory necessity for subscription has been held to be satisfied by signatures of granter and witnesses on a blank page, albeit on the reverse side of a sheet the other page whereof contained the elements of a will or other writ bearing to be signed by the granter but not witnessed. The solemnities in cases where deeds are written on more than one page are dictated by the Act 1696, cap. 15, which authorised deeds to be written bookwise, instead of according to the older practice whereby several sheets were battered together, the intersections being signed in the margin. The statute allowed deeds to be written book-wise, provided that each page be signed as the margins had been before, and that the end of the last page make mention how many pages are therein contained, in which page, only, witnesses were to sign in writs and securities where witnesses are required by law. The requirement italicised is no longer necessary—see the Conveyancing (Scotland) Act, 1874, section 38. Otherwise the Act of 1696 still prescribes the solemnities necessary where deeds are written bookwise. It is implied, of course, that subscription by the granter shall occur on the page on which the signatures of the witnesses to his subscription are written. In my view, the terms of the Act of 1696 are fatal to the claim of Miss Jane Watson Baird, for that statute, in authorising deeds to be written bookwise, provided that the last page should be signed by the witnesses, and, it follows, by the granter whose signature they witnessed. This requirement plainly demands that the granter and witnesses should subscribe at the end of the last page on which the deed is written, not on a blank page which forms the reverse of the last page on which the deed is written. This has been the unvarying interpretation of the statute of 1696 since it was enacted.

It must be remembered that, if a deed is ex facie executed in accordance with the statutory solemnities, it is probative. Its ex facie appearance creates such a presumption of its authenticity that it is effective until reduced. Now, where a deed is signed and witnessed at the end of the last page on which it is written, there is a presumption that the witnesses saw the granter sign that deed or heard him acknowledge his signature to it, and it is right that that deed should be given effect until reduced. But where a deed is signed and witnessed on a blank page, the reverse of that on which the deed is written, the signatures of the witnesses attest only that they saw the granter sign the blank page or heard him acknowledge his signature upon it. The deed might be written on the other page at a later date. You have accordingly, in such a case, no evidence ex facie of the deed that the witnesses saw the granter sign it, and there is no reason why, because of its ex facie appearance, it should be accorded probative effect.

Very different considerations arose in the case of Russell's Executor v. Duke, 1946 S. L. T. 242. The document there in question was admittedly holograph. At the foot of the first page, which contained the whole operative provisions of the writ, the granter had written the word "over." On the reverse page appeared the signature of the granter. Lord Keith held that the word "over" provided a sufficient link between the operative provisions and the signature of the granter to satisfy the provisions of the common law that a deed, holograph of the granter, must be subscribed. The case has no bearing on the present one, since it was not concerned with the solemnities prescribed by statute for the authentication of deeds not holograph of the granter. Moreover, it was not concerned with the fact that the signatures of witnesses attest the fact that they saw a person subscribe a deed, not a blank page. Further, since the document was admittedly holograph, the possibility of fabrication was out of the question.

As Earl Loreburn pointed out in Walker v. Whitwell (at p. 77), a neglect, accidental or springing from ignorance, may frustrate a perfectly honest will, but it is held better that a few instances of that kind should occur, rather than admit the flood of uncertainty which must follow if simple rules as to authentication be relaxed.

I hold that the order form is invalid as a testamentary writing for want of the authentication required by statute, and therefore repel the claim of Miss Jane Watson Baird, and sustain the claim of the trustees of the late Mrs Jane Young or Baird to be ranked and preferred to the fund in medio for purposes of administration in terms of her trust-disposition and settlement and codicil.

The daughter reclaimed, and the case was heard before the First Division on 18th March 1955.

LORD PRESIDENT (Clyde).—This is a multiplepoinding concerning the validity of a document signed by the late Mrs Baird. She died on 6th August 1950, leaving a formal trust-disposition and settlement and codicil disposing of her whole estate. But in her repositories after her death the document in question was found. It bears a date subsequent to her trust-disposition and settlement. It consists of a single sheet of paper, and is an order form for withdrawing money from the Savings Bank of Glasgow, where the deceased had a depositor's savings account with a credit balance of £1666, 19s. 4d. at the date of her death. One side of the form is partly printed and partly handwritten, and I refer to the photostatic copy of the document, with which we were supplied, for its precise terms. The testatrix's signature is written on this form at the bottom, all the remainder of the handwritten parts being in the handwriting of her daughter Janie, who is one of the claimants in the present action. On the other side of the form appear the signature of the testatrix and the names and addresses of two witnesses to that signature, together with the date 21st March 1947, which coincides with the date on the first mentioned side of the form.

Two main issues arise, firstly whether the document is duly authenticated, and secondly whether it has testamentary effect. The Lord Ordinary only found it necessary to deal with the first of these two issues. He treated the document as a deed written bookwise, and therefore falling within the provisions of the Act 1696, cap. 15. He found that this statute, in authorising deeds to be written bookwise, plainly required that the granter and witnesses should subscribe at the end of the last page on which the deed is written, and not on a blank page which forms the reverse of the last page on which the deed is written. He therefore held that the deed was not properly authenticated.

When the case was argued before the Lord Ordinary, it does not appear to have been maintained that the 1696 statute did not apply to a single sheet. But the decisions in Smith v. Bank of Scotland and M'Crummen's Trustees v. Edinburgh and Glasgow Bank appear to me to establish that this statute cannot apply to the present document, which consists only of a single sheet. The ground of judgment of the Lord Ordinary therefore cannot stand. In the latter of these two cases Lord Wensleydale (at p. 431) makes it clear that the Act in question applies where two leaves are used, and that it does not apply where there is only a single sheet. It is necessary therefore to consider this question apart altogether from the statute of 1696.

By the law of Scotland a writing which is to be effective must be authenticated as the deed of the granter. If the deed is holograph and signed by the granter, it will be thereby authenticated. But if it is not holograph—and the present deed is not—then, to be authenticated, it must comply with various requisites laid down by statute. As Duff (Feudal Rights, p. 3) says:

"The mode of attesting or authenticating deeds consists in the solemnities introduced by statute."

As Lord Dunedin said in Walker v. Whitwell (at p. 79):

"A deed without the requisite solemnities is not an authenticated deed,"

and he quoted Bankton (vol. i, p. 330) to the following effect:

"Writings require certain solemnities or formalities without which they are null."

The importance of maintaining and enforcing these statutory solemnities has more than once been stressed in the decided cases. For instance in Walker v. Whitwell Earl Loreburn said (at p. 77):

"The opportunity for fraud is so great, the temptations of self-interest are so liable to distort even an honest recollection, and the hardship so manifest if a man's fortune is disposed of by loose proof, that it has been judged necessary to insist npon certain precautions, or a choice of certain precautions. It is quite true that a neglect, perhaps only accidental or springing from ignorance … may frustrate a perfectly honest will, and thus cause the very mischief which these precautions were intended to avert. That risk is inevitable and must have been foreseen. But it is held better that a few instances of that kind should occur, rather than admit the flood of uncertainty which would follow if the simple rules be relaxed."

It is necessary therefore in the present case to consider carefully whether there has been compliance with the necessary statutory solemnities.

In early times authentication was effected by sealing the deed, but by the Act 1540, cap. 117, subscription by the granter was substituted for sealing. As Menzies (Conveyancing, Sturrock's ed., p. 83) says:

"This statute is the foundation of the present system of executing deeds, its grand feature being that, in place of the previous unsatisfactory practice of sealing, it required the subscription of the party either by his own hand, or, if he could not write, by the hand of a notary. It was defective, however, inasmuch as, while witnesses were required to the subscription of the party, there was no injunction that the witnesses themselves should subscribe."

This defect in regard to witnesses was remedied by the Act 1681, cap. 5—an Act which is described in Menzies (at p. 85) as "containing the final provisions of the law for securing the authenticity of deeds." This Act provided that "only subscribing witnesses in writs to be subscribed by any partie hereafter shall be probative."

The deeds and writs in use when these statutes were passed were in roll form, and, when one sheet of paper was not sufficient, it was lengthened by pasting another upon its lower end. The introduction of writs in book form was a later development, and special provision was made in the statute of 1696 to deal with the proper authentication of such writs. As already indicated, this Act does not apply to the present case, but it did require that the granter and his witnesses should subscribe at the end of the last page on which the deed was written, not on a blank page following that page. It would be strange indeed if, in the case of non-book-form deeds, a laxer rule obtained.

The statutory requirement in non-book-form writs (such as the present) is subscription by the granter and by the witnesses. In this case there is a subscription by the granter on the partly printed and partly written page of the writ, but no subscription by witnesses. That signature by the granter will not avail to authenticate the writ, although prima facie it appears to be at the conclusion of the writ, for it is not accompanied by any subscription by witnesses. The attested signature on the other side is in no way connected up with the body of the writ on the first side, and is not in fact a subscription at all. It is a writing on the opposite side of the paper. Subscription must be something written underneath the concluding part of the deed, not something above it or beside it or behind it. The signatures of the granter and her witnesses therefore fail, in my view, to satisfy the statutory solemnity of proper subscription.

Had the document run on from one page to the other with a witnessed signature at the end, that might have been enough to constitute the witnessed signature a subscription—M'Laren v. Menzies . Alternatively, if at foot of one page there had been something (e.g., the letters p.t.o.) to constitute a clear link between that page and the witnessed signature on the other side—Russell's Executor v. Duke, per Lord Keith at p. 243—then the difficulty might have been resolved. But nothing of this kind is present in this case, and, therefore, in my opinion, subscription by the granter and her witnesses is not established.

It was suggested that any defects in the subscription of this document could be remedied by the leading of evidence regarding the circumstances under the provisions of section 39 of the Conveyancing (Scotland) Act, 1874. But, in my opinion, no evidence is admissible to cure as radical a defect as this—Foley v. Costello, per Lord Moncreiff at p. 371. Indeed, it would be a dangerous precedent were we to sanction the adoption of such a procedure for this purpose.

I turn now to the final question in the case—Whether the document, even if properly authenticated, could have testamentary effect. It is addressed to the Savings Bank of Glasgow by the testatrix. It instructs the bank to pay the bearer all the money in her two savings bank books as a gift to her daughter on the day of her death. The document was not delivered to anyone prior to her death, and on her death it lapsed. There was clearly no de presenti gift, either inter vivos or mortis causa, and validity for it can only be claimed on the view that it operates as a testamentary bequest. But on her death the order lapsed, and at the moment at which it could operate as a testament it ceased to be effectual. In my view, therefore, it constitutes an

invalid attempt to use a mercantile document as a means of granting a bequest, and the testatrix's trustees are not bound by its terms.

On the whole matter I move your Lordships to affirm the interlocutor of the Lord Ordinary.

LORD CARMONT .—I agree with the opinion of your Lordship.

LORD RUSSELL .—I have had an opportunity of considering your Lordship's opinion and am in complete agreement with it, and cannot usefully add anything.

LORD SORN .—When this case was before the Lord Ordinary it would appear to have been presented to him on the view that it fell under the Act of 1696, which deals with deeds written bookwise. In the argument presented to us the reclaimer submitted that that Act did not apply to deeds written on one sheet, and the correctness of that submission would appear to be established by a number of decisions, none of which were cited to the Lord Ordinary—Williamson v. Williamson; Robertson v. Ker; M'Donald v. M'Donald; Smith v. Bank of Scotland; M'Crummen's Trustees v. Edinburgh and Glasgow Bank . The respondents, while not conceding the point, presented no argument to the contrary. Notwithstanding the inapplicability of the Act of 1696, it seems to me that the ratio of the Lord Ordinary's judgment is not affected and that his decision should be affirmed.

I think the true question in the case is whether the attested signature of the testatrix can be treated as a subscription of the deed. The signatures of the two witnesses constitute a good attestation of the testatrix's signature on the reverse side of the form, and the only question is whether that signature is a subscription to what appears on the front side of the form. The relevant statute is the Act of 1540, which, inter alia, made subscription by the granter a necessary solemnity (later statutes making it clear that this meant an attested subscription), and the only question is whether this deed is so subscribed. I have not been able to persuade myself that, although the deed is written all on one sheet, the mere presence anywhere on that sheet of the attested signature of the granter constitutes subscription. The natural place for the granter's subscription is beneath the writing, and I think it must be placed there, or, if it is not, that there must be something to link it with the writing in such a way as to make it equivalent to a signature so placed. In the present case the sheet of paper is not paged, and we simply find the writing on one side and the attested signature on the other. There is nothing on the side with the writing to direct the reader to continue to the reverse side and there is nothing on the reverse side to indicate that the signature is a pendant of the writing. It was argued to us that we should consider the probabilities from the point of view of the reasonable man and ask our-selves whether there could be any real doubt that the testatrix had intended the signature to be a subscription, but I doubt whether in a question of solemnities it is open to us to do this. I think the signature must proclaim itself to be a subscription and that it must do so upon the face of the deed itself. Counsel sought to assimilate the situation here to the situation that might arise where a deed was written upon a single sheet folded so as to form pages. Suppose the writing extended to the very bottom of one page—Was it to be supposed that the signature which followed was not a subscription because it appeared on the next page, which was otherwise blank? I am not going to express an opinion about that situation, because it seems enough to say that I regard that as a different situation. It might be thought, in such a case, that the link between the signature and the end of the writing was patent from the folding of the paper, or from the paging, or from something else, but in the present case I find myself unable to say that this is so. It was also suggested that, where the deed was written on one sheet, the solemnity of subscription was satisfied if there was an attested signature somewhere on the sheet. I think it is possible to find instances, both in the Acts and in judicial opinions, where the word "subscribed" is used to mean no more than "signed," but in interpreting the Act of 1540 I think the word cannot be given anything except its proper meaning, i.e., signed at the end of the deed. This view is supported by the opinions expressed in M'Laren v. Menzies —see Lord Deas at p. 1157, Lord Mure at p. 1165, Lord Gifford at p. 1167, and the Lord Justice-Clerk at p. 1175. I have not so far referred to the fact that the signature of the testatrix also appears on the side of the sheet with the writings on it and at the foot of those writings. In my opinion, this signature has no bearing on the matter at all. The signature of the witnesses manifestly relate to the other signature on the other side, and this signature, being unattested, is nothing. It follows, in my opinion, that in the absence of subscription by the granter the document before us is not a validly executed testamentary writing.

A further question was raised whether, in the event of the Court coming to the above conclusion, it was open to the reclaimer to avail herself of section 39 of the Conveyancing (Scotland) Act, 1874, with a view to having the absence of subscription treated as an informality of execution within the meaning of that section. The section is not invoked in the pleadings of the case, and it is perhaps doubtful whether we should express an opinion upon a matter not raised in the pleadings and not dealt with by the Lord Ordinary. The sum at stake, however, is not a large one, and, having heard argument on the point, it seems to me desirable that we should express our opinion. I do not think that section 39 is open to the reclaimer. The essential prerequisite for applying its provisions is that the deed should be subscribed by the granter or maker thereof and should be attested by two witnesses subscribing. This means that, so far as subscription by the granter is concerned, the solemnities of the existing law must be complied with. Since we have held that this is not so, there is no foundation for applying the section.

Having held that the document is not validly executed, it is unnecessary to decide the question whether, had it been validly executed, it could have been given effect as a legacy to Miss Baird of the savings bank money. I will say, however, that it seems extremely doubtful whether it could have been given this effect. Mrs Baird's purpose plainly was that the bank should pay the money directly to Miss Baird on her death. The mandate fell on her death and this purpose came to nothing. I find it difficult to see how this writing, addressed to the bank, could be treated as a testamentary direction to the executors. In her trust-disposition, dated before the signing of the withdrawal form, and in her codicil, dated after it, Mrs Baird had expressed her testamentary wishes in the usual form of directions to her executors, and this seems to emphasise the non-testamentary character of the attempted transfer of the bank money to Miss Baird. In these circumstances, the attempt having failed, it would seem difficult to treat the writing as being equivalent to a direction to the executors to pay the money over.

[1955] SC 286

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