Scottish Court of Session Decisions

At advising on 2nd December 1958,—

LORD JUSTICE-CLERK (Thomson).—This is an appeal against the dismissal by the Sheriff-substitute of a petition craving the Court to grant warrant to the Commissary Clerk to issue confirmation. The Sheriff-substitute refused the crave as he thought that the will in question was not validly authenticated by the law of Scotland. The will was executed by a domiciled Scotsman, resident in France. It is in English form. These considerations, while they may explain how the difficulties have arisen, do not affect the decision of the question. The document is contained in a single sheet which is folded double, like the familiar double sheet of notepaper. Thus, while it is a single sheet, it has four "pages" or writing surfaces. The first page carries in typescript the substance of the testamentary writing, followed by the words, "In witness whereof I have hereunto set my hand this second day of October One Thousand nine hundred and forty two." Then follows the signature, which is less than a couple of inches above the bottom edge of the page. Alongside the signature, and to the left of it, are the words "Signed by the Testator as and for his last Will and Testament in the presence of us who at his request in his presence

and in the presence of each other all being present at." That completes what is on the first page. There is nothing on page two, which is of course the back of page one. On page three there appear the following words "the same time have hereunto subscribed our names as witnesses." Then follow the signatures, designations and addresses of the two witnesses.

The only question is whether, in these circumstances, the will satisfies the statutory injunction that the witnesses must subscribe, a requirement which arises from the provisions of the Act 1681, cap. 5. There can be no real doubt as to what is meant by subscription. It is in contrast to superscription. In the one the signature is written at the beginning: in the other it is at the end. When one is dealing with a single sheet, no matter into how many pages it is folded, there is not any necessity, as in bookwise deeds, to subscribe each page. If only one page is used, one can talk of subscription being at the bottom, and this would cover both the bottom of the page and the end of the writing. But, where two or more pages are used, if one speaks of subscribing at the bottom one means in this connexion the end of the writing, and not necessarily the spatial bottom of the page which carries the subscription. It follows that where a writing is carried over from one page to a second page, it can be subscribed anywhere on the second page. What one has to be assured of is that there is consecutiveness in the passing from page to page, and that what appears on the second or later pages is truly a continuation of what was begun on the first page.

The Sheriff-substitute felt bound to refuse the crave of the petition in view of the decision and dicta in Baird's Trustees v. Baird 1955 SC 286. In my view, that case is different from the present, and, once the character of the difference is appreciated, no difficulty arises from what was said by the Judges, as their observations fall to be read secundum subjectam materiem. The document in question in that case was a bank order form and was a single unfolded sheet. On the front was a partly printed direction to the bank with the blanks filled in in handwriting. It was dated. The depositor had signed at the place marked "Depositor's Signature." On the reverse side were the signatures and addresses of two persons, each signature being preceded by the word "witness," and being followed by a date which corresponded with the date on the front. Below these signatures there appeared the depositor's signature. There was absolutely nothing to show that there was any connexion or relation between the two sides of the document. The similarity of date did no more than show that each side had been filled up within the same span of twenty-four hours. But this temporal identity was insufficient to show that the two sides were connected or related in substance. As the Lord President said "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."

In the present case the situation is quite different. One passes from page to page in the middle of a sentence. The sense is consecutive. To use a cinema metaphor, there is no break in the continuity of the script. I can imagine cases where the passing from one page to another might set a trap for the unwary conveyancer, so that the consecutiveness might be in doubt. But nothing of the sort occurs here where the sense, purpose, position, and, even the stereotyped form of the connecting sentence, lead naturally from page to page to end the document in the accepted way, and so to provide a proper basis for the subscription of the witnesses.

In my view, we should remit the case back to the Sheriff-substitute to grant the crave of the petition.

LORD MACKINTOSH .—This is a petition craving confirmation as executor-nominate qua universal legatory of a deceased person, who latterly had been resident in France and who died there, but without having lost his Scottish domicile of origin. The deceased left a will which had been prepared for him by solicitors in London and was in English form. It was typewritten on a single sheet of paper which had been folded so as to form two leaves of four pages, counting the front and back surfaces of each leaf as a separate page. The testamentary substance of the will and the testator's subscription thereof was contained on the front or first page while the two attesting witnesses signed on the front of the second leaf, i.e., on the third page counting as aforesaid, each of them adding to her signature her designation and address and the word "témoin." Alongside the testator's signature and to the left of it, i.e., at the bottom left hand side of the front or first page of the deed, there is the usual attestation docquet to be found in wills in English form, but the whole of that docquet is not written on that page, its last two lines being carried forward to and written on the top of the next leaf, just above and to the left of where the witnesses have appended their names designations and addresses. The back or reverse side of each of the said two leaves is blank, i.e., has no writing on it.

The question in the case is, whether a will so executed has been validly authenticated according to the law of Scotland. It was not maintained for the petitioner that this will had been validly executed according to the forms required by the law of the place where it was made, or that on that ground it could be admitted to confirmation by virtue of section 1 of the Wills Act, 1861. The crave of the petition therefore can be granted only if the petitioner can satisfy the Court that in the case of this will the statutory solemnities required by the law of Scotland for the authentication of deeds have been obtempered. In that connexion, the first point which has to be noted is that, although the paper on which this will was typewritten was folded over so as to form two leaves or four pages, it consisted only of a single sheet. That

is of importance because it is matter of decision in our law that the Act 1696, cap. 15, which dealt with the solemnities required for the authentication of deeds written bookwise, applies only to deeds written upon more than one sheet, and not apparently to deeds which, although written bookwise, i.e., on consecutive pages, are all on one sheet. This was decided as early as 1742 in the case of Robertson v. Ker, where an objection taken to a will, consisting of four pages written bookwise, on the ground of its not complying with the requirements of the Act 1696 was repelled "in respect it was written upon one sheet only." This decision has been followed in a number of subsequent decisions including those referred to by Lord President Clyde in Baird's Trustees v. Baird; and it is stated quite categorically by Menzies in his Lectures on Conveyancing, that the Act 1696, cap. 15, refers only to deeds written upon more than one sheet. That Act therefore does not apply in the present case. The solemnities which do apply here are, as in Baird's Trustees,those prescribed by the Acts 1540, cap. 117, and 1681, cap. 5, the combined effect of which is to require the granter of a deed to subscribe it in front of witnesses, and for the witnesses also to subscribe the deed. The Acts do not prescribe the number of witnesses necessary in the case of a deed executed by the subscription of the party himself; the rule that two instrumentary witnesses are necessary in such a case flows from the common law of Scotland, which requires the evidence of two witnesses to prove a fact. The instrumentary witnesses are called simply to verify the subscription of the deed by the party and have not any concern with the contents of the deed. They merely attest the fact that they saw the party write his subscription, or heard him acknowledge it.

Such being the legal requirements, can it properly be said that this deed, executed in the manner above described, has been subscribed by the testator and by two subscribing witnesses ? The learned Sheriff-substitute has answered that question in the negative, and accordingly dismissed the petition. He took the view that although there is in this case, unlike the position in Baird's Trustees, a link between the two leaves of the deed, namely, the attesting docquet which has its first five lines on the front, or first, page, and its remaining two lines on the front of the next, or second leaf, that link is of no avail because the testator "has not signed at the end or on the last page." In these circumstances, he conceived that he was constrained by the majority opinion in Baird's Trustees to hold that this deed had not been subscribed by the testator and by two subscribing witnesses as required by the Acts of 1540 and 1681. In my opinion, the Sheriff-substitute has misdirected himself as to the meaning and effect of the decision in Baird's Trustees. That decision, as I understand it, proceeded on the view that, there being no indication of any connexion or link between the writing on the two sides of the paper on which the

alleged deed there in question was written, the attested signature on the reverse side of the paper could not be regarded as being a subscription of what was written on its other side, or indeed as being a subscription of anything at all, and the subscription by the granter, which was on the side of the paper where the body of the writing was, was also of no avail because it was not accompanied by any subscription by witnesses. Accordingly, it was held in that case that subscription by the granter and her witnesses had not been established, and the deed was consequently found to be invalid. In my opinion, however, a very different situation arises when, as here, there is (a) a subscription by the granter at the foot of the first page of the deed, and (b) signatures by two witnesses at the top of the next leaf, the two leaves being linked by the attesting docquet which as above set forth was written, partly on the front of the first leaf and partly on the front of the second. The signatures of the two witnesses being thus linked to the subscription by the granter, they too become subscriptions of the deed. The self-same situation as has occurred here is to be found in the case of M'Laren v. Menzies, and, although the point was not there specifically raised, neither the majority nor the minority of the Court took any exception to it. The will in that case—which was a deed written book-wise, consisting of more than one sheet, to which therefore the Act 1696, cap. 15 applied—was written on five pages and bore the granter's name by way of subscription upon the fifth page, followed by an attesting docquet in similar terms to that in the present case. This docquet began at the foot of the fifth page and finished on the sixth page, and after it came the signatures of the attesting witnesses. It will thus be seen that the sixth page of the deed in M'Laren v. Menzies, like the third page of the deed now under consideration, contained nothing but the concluding part of the attesting docquet and the signatures of the witnesses, but it was linked to the fifth page which contained the granter's subscription by the attesting docquet, which began at the foot of the fifth page and finished at the top of the sixth page. M'Laren v. Menzies was a seven Judge case, and the Court was divided by four to three on the question whether each separate or separable sheet of the writing had to be authenticated by the subscription of the granter; but all the Judges appear without question to have regarded the deed as having been subscribed by the granter and the witnesses, although, as aforesaid, the signatures of the witnesses were on a different page from that of the granter, the two last pages being linked by the attesting docquet in very much the same way as happened in the case of the deed now under consideration. I do not know of any authority which requires the signature of the granter and the signatures of his attesting witnesses necessarily to be on the same leaf or page of the deed, so long as there is some clear link or connexion between the page upon which the granter's signature appears and the next page upon which the witnesses' signatures are found. It was the

want of any such link or connexion which led to the decision in Baird's Trustees; but that case, in any event, was different in its facts from the present case. The writing in Baird's case was contained on the front and back of a bank order form—a very different situation, as was pointed out by Lord Sorn (at p. 295) from that of a deed written upon a single sheet folded so as to form pages. For these reasons I think that the learned Sheriff-substitute was wrong in dismissing this petition. I agree with your Lordships that this appeal should be allowed.

LORD STRACHAN .—I agree that this appeal succeeds.

The will of Mr Heron Watson bears to have been signed by him, and, as his signature appears at the end of the body of the deed, it was, in my opinion, duly subscribed by him. He signed at the foot of the first page. The only question is whether the will can be said to have been validly subscribed by the two witnesses, whose signatures appear at the top of the third page of the folded paper, presumably because there was little room left for them on the first page.

The case is distinguishable from Baird's Trustees v. Baird in respect that there is a clear link between the testator's signature on the first page and the witnesses' signatures on the third page. That link is constituted by the docquet of attestation, which is partly on the one page and partly on the other. The docquet plainly says that the testator signed in the presence of the witnesses, and that they signed as witnesses, at his request, in his presence and in the presence of each other. In those circumstances, it would, in my opinion, be highly technical to say that the will was not properly authenticated, merely because the witnesses have not signed at the foot of the first page or because the testator has not signed the third page. I should not be prepared so to hold, unless there was clear authority which compelled me to reach that decision. It seems to me, however, that such authority as there is supports the validity of this deed. In M'Laren v. Menzies the relative placing of the signatures of the testatrix and the witnesses and of the docquet of attestation was in all material respects the same as in the present case. It was not suggested that the will was invalid on that account, and therefore the point did not arise for decision, but Lord Deas and Lord Gifford expressed the view that the will was sufficiently subscribed by the attesting witnesses, and the will was eventually held to be valid. In Russell's Executor v. Duke the facts were not so similar, but that case is an example of a link being used to connect a signature on one page with a writing on another. A holograph writing on one side of an envelope was signed by the testator only on the other side, but Lord Keith held that the writing was validly subscribed by virtue of the fact that the word "over" appeared at the bottom left hand corner of the side containing

the words of bequest. In Baird's Trusteesthere are plain indications in the opinions of the Lord President and Lord Sorn that the decision might have been different if there had been any link at all between the one page and the other, and I do not regard anything that was said in that case as precluding the Court from upholding the validity of the authentication of the will in the present case. In my opinion, the Sheriff-substitute was wrong in holding that the opinion of the Lord President in Baird's Trustees required him to dismiss this petition.

I desire to add that my opinion in this case proceeds upon the basis that the deed, being a single sheet of paper, is not a deed written bookwise, and that therefore the Act 1696, cap. 15, is not applicable.