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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon's Executor v Macqueen  ScotCS CSIH_5 (11 January 1907)
Cite as: 1907 SC 373, (1907) 14 SLT 651,  ScotCS CSIH_5
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11 January 1907
onus is here on the party who maintains that one of the wills revoked by the holograph writing was the will of 1852. There is no evidence that when the will of 1852 was made the testatrix was suffering from decay of memory, or was incapable of making a will. One might even go further and say that the inference is the other way, because the terms of the will appear to be entirely fair and rational; it was drawn up by a member of the legal profession, and the witnesses appear to have been the doctor of the testatrix and the minister of her church. There is a strong presumption, therefore, that the testatrix was not at that time suffering from any mental incapacity. There is accordingly no evidence in my opinion that the will of 1852 was one of those which was expressly cancelled.
That leaves the question whether the two wills are incapable of standing together. The Lord Ordinary answers that question in the affirmative. He reads the holograph will as one “in which the testatrix deliberately stated her intention of making no provision for the disposal of her free estate after her death.” I agree that if that is a correct description of what the holograph will does, it would revoke the will of 1852. If the testatrix had said, “I prefer not to dispose of my estate, but to leave my succession to the operation of law,” such a declaration would receive effect; but, with very great deference to the Lord Ordinary, whose opinions are always entitled to great respect, I am unable to construe the holograph will in any such way.
Apparently the testatrix intended to make a testamentary disposition of her means, because she says that “in place of” the cancelled wills she makes “the following statement of my wishes.” In the statement which follows, however, she makes no testamentary disposition. She does not even—as I read the will—invoke the law of intestate succession. She merely says that she retains in her own name such money as she requires; that she wishes to remember her friends but has little to do it with; and then she commends herself to the care of the Almighty. Perhaps if the cancelled wills had been in existence they might have thrown some light upon what the testatrix had in her mind, but reading what purports to be a statement of her wishes alone, I cannot spell out of it any testamentary intention at all. The Lord Ordinary founds chiefly upon the words—“I wish to rember my friends but have little to do it with,” which, he says, shew that the testatrix considered her estate to be of such small amount as not to require to be specially bequeathed. That may have been what she meant, but it may not have been so. It seems to me to be impossible to say what she had in her mind when she said she wished to remember her friends, or to read what she said as amounting to a declaration that she did not intend to dispose of her estate at her death, but desired to leave it to the operation of the law of intestacy.
In regard to the last clause in the will it may perhaps be read as the nomination of an executor, but even in that case, although the executor so nominated might supersede the trustees appointed in the will of 1852, that will otherwise would not be thereby revoked. I doubt, however, whether the clause was intended to do more than provide that the gentleman who was her legal adviser at her death should be the law-agent employed in winding up her affairs.
LORD KYLLACHY was absent.
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