Scottish Court of Session Decisions

Subject_1 PART I.

WRIT.

Dundas
v.
Lowis

Date: 13 May 1807
Case No. No. 6.

Codicil to a will not effectual, tho' subscribed by the testator, if not holograph or attested by witnesses.

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In 1804, Mrs, Margaret Houston executed a settlement, by which she disponed her whole property to certain persons as trustees. These trustees were directed to pay the interest of her fortune to her brother Captain Robert Rollo, during his life; to pay certain legacies, and in particular a legacy of £500 to Janet Houston Dundas, her grand-niece, and to pay over the remainder of her fortune to her two nieces Agnes and Magdalene Lowis. In this deed, it was declared, “That my said trustees shall hold any additional directions which I may give them, by a writing under my hand, as part of this trust-deed;” and, subjoined to the trust-deed, is a codicil in these words: “In addition to the legacies above mentioned, I hereby direct my said trustees to pay to the before-designed Robert Forrester the sum of £50 Ster. at the term when my other legacies are paid; and I appoint this codicil to be recorded alongst with my settlement.”

(Signed) “Margaret Houston.”

This codicil was written by the same person, who wrote the trust-deed, was signed the day after the date of it, on the 20th June 1804, but was not tested by witnesses.

In 1805, Mrs. Houston executed another codicil, on a separate paper, of the following tenor:

“I Mrs. Margaret Houston of Morningside, did, in the last summer, make a settlement, appointing my two nieces Misses Agnes and Magdalane Lowis my residuary legatees. I now therefore revoke and alter it, in so far as to appoint my niece Miss Agnes Lewis my sole and only residuary legatee. In witness whereof, these presents, written by Robert Forrester, Treasurer of the Bank of Scotland, are subscribed by me, at Morningside, the 13th day of June 1805 years, before these witnesses, John Ponton, my servant, and the said Robert Forrester. I also desire, that my watch, jewels, trinkets, and laces, be given to my said niece Miss Agnes Lowis. (Signed) Marcaret Houston. Robert Forrester, witness; John Ponton, witness.”

Subjoined to this paper are these words:

“I desire my Royal Bank stock to be given to Miss Jane Houston Dundas. (Signed) Margaret Houston.”

These last words are also in the handwriting of Mr. Forrester, and they were subscribed by Mrs. Houston of the same date, after the servant who had witnessed the subscription of the codicil had left the room, and in order to supply an omission which Mrs. Houston conceived she had made in the codicil.

After Mrs. Houston's death, the trustees were doubtful how far they were bound to pay the legacy of £50 to Mr. Forrester, or to transfer the bank stock to Miss Dundas, inasmuch as these bequests were neither holograph of the testator, nor attested by witnesses.

A process of multiplepoinding was brought in the name of the trustees, by the residuary legatee; and the Lord Ordinary “having heard (21st Nov. 1806) the procurators for Miss Agnes Lowis, residuary legatee, and Miss Janet Houston Dundas, repels the claims of Miss Dundas and Mrs. Robert Forrester, founded on the unauthenticated codicils; prefers Miss Lowis to the funds in medio, and decerns in the preference, and for payment accordingly.”

Afterward, upon advising a representation, with answers, his Lordship (16th Jan. 1807) pronounced the following interlocutor:

“Finds, That by a trust-deed, duly executed with all the solemnities of law, the late Mrs. Houston vested her whole property in trustees, for certain uses therein declared; Finds, That this deed reserved the power of alteration, and provided, that the trustees should hold any additional directions she might give them as to the disposal of her property, by a writing under her hand, as a part of the trust-deed: Finds, That upon the 13th June 1805, Mrs. Houston so far altered her original settlement as to appoint her niece Miss Agnes Lowis her sole residuary legatee, and that this codicil was duly executed, but that the separate codicil upon which the representer founds is not holograph, and is destitute of date, writer's name, and subscription of witnesses, so cannot be set up as an alteration of the former regular settlement; refuses the desire of the representation, and adheres to the former interlocutor.”

Miss Dundas presented a petition, which was, by a great majority, refused, without answers, upon the grounds stated in the interlocutor of the Lord Ordinary.

Lord Ordinary, Hermand. For Petitioner, Cathco. Agent, A. Duncan, W. S. Clerk, Walker. Fac. Coll. No. 278. p. 627.