Scottish Court of Session Decisions

Miss Helen Aitchison, Alderston, Haddington, died on 29th November 1898. She left certain holograph testamentary writings. The first of these, which was dated October 1897, contained various legacies to charitable institutions and to other beneficiaries, and the following words:—“My executor Mr Torry to get £100.” The second document dated 1898 constituted a universal settlement. By it legacies were given to charitable institutions, and to others, and Lady Denman the sister of the testatrix was given a liferent of the residue of her estate. No reference was made to Mr Torry by name, but the document contained the words “My executor to have £100.”

On 15th March 1899 a petition was presented by Lady Denman, the only surviving sister and next-of-kin of Miss Aitchison, in the Sheriff Court of the Lothians and Peebles craving for her appointment as executrix-dative of her sister.

Thereafter on 22nd March a petition was presented in the Bill Chamber by Mr Andrew Scott, C. A., Edinburgh, and others as representing the charitable institutions who were Miss Aitchison's residuary legatees and general disponees, craving the appointment of a judicial factor on Miss Aitchison's estate. The petition contained averments that Lady Denman was in her 74th year and an invalid, that she was unacquainted with business matters, and that by reason of her age she was unfit to be entrusted with the administration of the estate.

On 31st March a petition was presented by the last named petitioners in the Sheriff Court craving to be appointed as executors-dative.

On the same date the Sheriff-Substitute decerned the petitioner Lady Denman as executrix-dative qua next-of-kin.

The respondents appealed to the Sheriff.

A petition was presented on April 6th by Mr John Torry, law-agent, Edinburgh, craving for confirmation as executor-nominate on the ground that he had been appointed executor by Miss Aitchison's testamentary writings.

The Sheriff ( Rutherfurd) conjoined the petitions of Lady Denman and Mr Torry, and on 10th April 1899 pronounced this interlocutor:—“Finds ( Second) That by her said holograph writings the said Miss Helen Aitchison nominated as her executor Mr Torry, meaning the petitioner John Torry, who for many years acted as her agent; ( Third) That the said writings contain a valid and sufficient nomination of the said petitioner as executor of the deceased: Therefore recals the Sheriff-Substitute's interlocutor of 31st March 1899, in the petition at the instance of the said Baroness Denman; dismisses the same, and decerns; grants warrant to the Sheriff-Clerk of Haddingtonshire to issue confirmation in favour of the said John Torry as executor-nominate of the said deceased Miss Helen Aitchison on production of a duly stamped inventory and relative affidavits, and decerns,” &c.

The petitioner Lady Denman appealed to the First Division.

Argued for petitioner Lady Denman—1. There was no appointment of Mr Torry as executor in the document of 1897. There was no case where the use of such words as “My executor Mr Torry,” without any

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executorial powers being conferred, had been held to constitute the appointment of an executor. But in point of fact the deed of 1898 was the only valid one, superseding all others, and it alone could be looked at. It was a universal settlement, and all the legacies in the 1897 deed were wiped out, including that to “my executor Mr Tony”— Tod, November 25, 1890, 18 R. 152; Sibbald's Trustees v. Greig, January 13, 1871, 9 Macph. 399. In the 1898 deed Miss Aitchison recognised that she must have an executor, and gave him £100, but had not made up her mind who he should be. The claim of Mr Torry was founded solely upon an implication from a revoked legacy.

Argued for Mr Torry—1. It was competent to read the deeds together, and the appointment of executor made in the first was in no way revoked by the directions in the second. Though the legacies in the first were wiped out, there was practically no distinction in those given by the second, and the existence of an executor is referred to. The words “My executor Mr Torry” were sufficient to constitute the appointment. He could not have claimed the legacy without acting as executor— Low's Executor, June 21, 1873, 11 Macph. 744. The case should not be treated as if there were a regular formal deed, but there did exist under the hand of the testatrix an indication of her intention that Mr Torry should be her executor.

Argued for Mr Scott and others—Failing the appointment of Mr Torry, they were entitled to be conjoined with Lady Denman as executors— Webster v. Shiress, October 25, 1878, 6 R. 102.