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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLernan & Anor v McLernan Or Ash & Ors [2001] ScotCS 49 (6 March 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/49.html Cite as: [2001] ScotCS 49

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[1] The first, and primary, conclusion of the summons in this action is directed towards proving the tenor of a holograph testamentary writing said to have been made by the late Mrs Julia Elizabeth Glancy or Sinclair, who lived at 73 Stamperland Avenue, Clarkston. There is a second conclusion seeking declarator of the meaning or effect of that writing, were decree in terms of the leading conclusion to be pronounced.

[2] The deceased (to whom I shall refer either as such or as "Mrs Sinclair") was a retired school teacher. She died in the early hours of 21 April 1995 in Eastwood Court Nursing Home, Giffnock from a carcinoma of the bladder. She was 83 years old at the time of her death. Prior to her admission to the nursing home on 29 March 1995 she had been a patient in the Prince and Princess of Wales Hospice, having been transferred to the hospice on 27 February 1995 from the Bon Secours Hospital in Glasgow. Apart from an interval between 27 December 1994 and 12 January 1995 when Mrs Sinclair had been treated in the Beatson Oncology Centre of the Western Infirmary, Glasgow, she had been an in-patient in the Bon Secours Hospital since her initial admission to the Bon Secours Hospital for a cystescopy and other possible tests on 28 November 1994. Putting that chronology in a different order, Mrs Sinclair was admitted to the Bon Secours Hospital on 28 November 1994 and between that admission and her death on 21 April 1995 she remained an in-patient in those hospitals without ever returning to her house in Stamperland Avenue, Clarkston.

[3] Mrs Sinclair died a widow. Her husband, Arthur Sinclair, predeceased her by some fifteen years, he dying in February 1980. Their only child was a son, William, who died unexpectedly in March 1957 in his early teenage years while travelling to school one morning.

[4] The family relationships between Mrs Sinclair and the other parties convened in this action are set out in averment and also in the form of a family tree in the document No.24/2 of process. Put shortly, of the pursuers the second named pursuer, the Reverend Arthur Kilpatrick, is a nephew of Mrs Sinclair's late husband, Arthur Sinclair. The relationship of the first pursuer, Mr McLernan, to the deceased is more remote, his father's mother and the deceased's mother being sisters. The first defender is a sister of the first pursuer. Both of the pursuers and the first defender are beneficiaries under the holograph testamentary writing contended for, were that writing to be established in this action. The other defenders, including the only compearing defenders - namely the fifth to thirteenth defenders inclusive - are, broadly put, those interested in the event of intestacy. They would claim to the estate as descendants (to varying degrees) of siblings of the parents of the deceased, namely, her mother's brother, William Foley, or her father's brother, Joseph Glancy. The compearing defenders are those descended from William Foley. It is not suggested that, other than the holograph writing with which this action is concerned, Mrs Sinclair executed any other testamentary deed at any time.

[5] The first issue of fact arising in this case is whether Mrs Sinclair did indeed make any holograph Will.

[6] The primary source of evidence relied upon by counsel for the pursuers was that of Mr McLernan, who deponed to having seen a signed holograph Will, on the lines set out in his reconstruction in manuscript forming part of No.6/1 of process. (For convenience I shall refer to that handwritten reconstruction as No.6/1 of process, albeit that the documents in that production also include a typescript document). Mr McLernan deponed that he had seen that holograph Will on the day before Mrs Sinclair was admitted to the Bon Secours on 28 November 1994. The time at which he saw it was unclear, but appears to have been in the course of the afternoon or early evening.

[7] By way of background or introduction to that chapter of his evidence, counsel for the pursuers took from Mr McLernan, who practised as a solicitor prior to accepting shrieval office in 1991, that Mr McLernan had been at school with William, whose tragic death had never really been overcome by Mrs Sinclair. After the death of the witness's father, Mrs Sinclair had been in frequent contact with his mother. When the witness's mother died in April 1993 contact was maintained between Mrs Sinclair and the witness, principally by telephone, but also by visits.

[8] So far as those contacts were concerned, it appears that the first mention of any prospective testamentary arrangements came in the summer of 1994 when Mrs Sinclair phoned Mr McLernan's wife. According to the evidence given by Mrs McLernan, she had a recollection of a particular telephone conversation in which Mrs Sinclair said that she would like to leave her house to Father Arthur (the second pursuer) and to Kieran (the first pursuer). The import of the call was relayed by Mrs McLernan to her husband but, as he deponed, he deliberately did nothing in response. In the course of subsequent telephone conversations between Mr McLernan and Mrs Sinclair, the deceased indicated that she wished Mr McLernan to prepare a Will for her. The first pursuer testified to having told her that he would not do that and that she should go to see a solicitor. He suggested a particular firm of solicitors, being the firm of solicitors who had dealt with her late husband's affairs. In a later conversation the deceased mentioned another firm in Clarkston, and he encouraged her to go to them. Subsequently, perhaps in the apprehensive knowledge that she was shortly to go into hospital for tests, she asked Mr McLernan for a form of Will for completion. He declined to provide such a form. She later telephoned, expressing concern about going into hospital without having made a Will. According to Mr McLernan, he eventually explained to the deceased that she could make a holograph Will if need be. He explained that it would require to appoint executors, identify the particular beneficiaries and should deal with the residue. It required to be signed.

[9] Mr McLernan deponed that he subsequently received a telephone call from Mrs Sinclair asking that he should visit her before she went into hospital. He responded to that request by visiting her on what he believed to be the afternoon or evening prior to her admission. He thought it was a Sunday, in November 1994. After usual pleasantries Mrs Sinclair handed to him a greenish-blue sheet of notepaper saying - "I have written this out." What was written on the sheet was in her handwriting and had been signed by her. He read it. He was a little surprised at the accuracy of the legal terminology of the opening part which appointed as executors Father Arthur Kilpatrick and himself and then left the house at 73 Stamperland Avenue to Father Kilpatrick and himself. He thought that the term "bequeath" was used in respect of the house and this bequest referred also to the contents of the house. The document thereafter continued by stating "and that includes all my building society and bank books and savings and investments." There followed thereafter a list of bank books and investment institutions. So far as Mr McLernan could recollect there were listed a building society and two banks. At least one of the banks involved two accounts. Opposite the reference to the inclusion of her building society and bank books and all her savings, there was a marginal note - "and this includes Ailish too". Mr McLernan deponed that he considered that to be related to the financial investments by way of savings accounts or otherwise. Later, in January 1996, Mr McLernan was asked by solicitors to provide a reconstruction of what he had seen and, as already mentioned, that manuscript reconstruction is contained within No. 6/1 of process.

[10] According to Mr McLernan, Mrs Sinclair had taken the document from the top of a bundle of papers, which included various bank or building society passbooks. After Mr McLernan had read it, Mrs Sinclair asked whether it was all right and "would do". Since, at that stage, it was thought that the deceased was only going into hospital for various investigatory tests, Mr McLernan told her it would cover the situation meantime. Mrs Sinclair wished however that Mr McLernan prepare a formal Will. Mr McLernan then looked at the document for a second time to satisfy himself that it would operate as a valid testamentary writing. He concluded that it would, being holograph and signed. On Mrs Sinclair's asking where she should put it, he suggested that it might be placed among the dishes in the sideboard within the rear livingroom of the house, rather than the wall cupboard next to the fireplace where he understood she kept the bank books.

[11] In his closing submissions, counsel for the pursuer rather proceeded on the basis that, apart from a passage in the evidence of another witness, Mrs Daly, to the effect that Mr McLernan had allegedly said that the Will was not signed, it was accepted by the compearing defenders that there had been a testamentary writing in existence on November 27, 1994. He observed that no challenge had been presented by way of cross-examination respecting Mr McLernan's evidence that he had seen a holograph Will. For her part, counsel for the defenders stated that it went too far to say that the defenders accepted the existence of the testamentary writing at that date. Her position was that it was a matter upon which the court required to satisfy itself. (I would record that although in relation to certain other matters, Miss O'Brien, who appeared for the defenders sought to challenge the reliability of some aspects of Mr McLernan's evidence, no direct criticism was advanced regarding this particular chapter. In so far as those other criticisms might reflect indirectly on Mr McLernan's reliability on this aspect, I have borne them in mind.)

[12] There is, however, as counsel for the defenders readily recognised, a clear body of other evidence supportive of Mr McLernan's testimony that Mrs Sinclair had indeed executed a holograph Will shortly before entering hospital.

[13] I mention, first, the evidence from other witnesses that later, on the death of Mrs Sinclair, Mr McLernan clearly believed that a holograph Will existed. Mrs Daly - who lived near to Mrs Sinclair's home, and who had possession of the keys of Mrs Sinclair's house - deponed to having spoken on the telephone with Mr McLernan on the eve of Mrs Sinclair's death. Mrs Daly said in her evidence that Mr McLernan was convinced that there was a Will, which he thought might possibly be with the bank books. According to Mrs Daly he went on to say that it was something that she had scribbled down before she went into hospital but "it was not signed". Mrs Daly went on to say that Mr McLernan had thereafter said that "it did not need to be signed in Scots law". Respecting other matters, counsel for the pursuers invoked this passage in Mrs Daly's evidence as indicative of her unreliability, in the sense that Mr McLernan, as one legally trained, would not have voiced the plainly unsound proposition that signature was unnecessary. However, in my view the remark may well have been misinterpreted by Mrs Daly, its true content being a reference to the availability of holograph testamentary writings, which in Scots law need not be witnessed. At all events I did not understand it to be disputed that, at or about the time of death, Mr McLernan had told Mrs Daly that he had indeed seen a Will in Mrs Sinclair's handwriting just before she had gone into hospital. In addition to that evidence of Mr McLernan's reaction at the time of the death, there is the further evidence from Mr Kidd, Solicitor, who was contacted in the immediate aftermath of the death by, among others, Mr McLernan. It will be necessary to revert in some more detail to Mr Kidd's evidence but, for the present, all that need be said is that he participated with Mr McLernan in a search of the house of the deceased on the Saturday morning following the death in order to find the holograph Will which Mr McLernan plainly believed to have been in existence.

[14] Additionally, one has the evidence of other witnesses respecting what was said to them by Mrs Sinclair prior to her death.

[15] In her evidence Mrs Ash, the first defender, spoke to various telephone conversations which she had had with Mrs Sinclair in the lead up to Mrs Sinclair's admission to hospital. According to Mrs Ash, having been told that she would need to go into hospital Mrs Sinclair indicated that she was very concerned that she should "get her affairs in order". According to Mrs Ash she started to talk about making a Will. Mrs Sinclair wished Kieran (the first named pursuer) to draw up a Will for her. The witness and Mrs Sinclair had a long discussion about that. Mrs Ash firmly advising her against that course since she felt the deceased should get someone from outside the family. Mrs Ash later went to the extent of advising the deceased to select a solicitor from the "Yellow Pages" telephone directory. However, the deceased was determined that she was going to have Kieran attend to this matter. Eventually, however, Mrs Ash received a telephone call from the deceased in which the deceased told her, with some evident relief, that Kieran had said that she could write her Will out herself and date and sign it. According to Mrs Ash the deceased told her that she had in fact made such a holograph Will, but she wished nonetheless to get Kieran to type it out in the proper legal language. The deceased further told Mrs Ash that she wished Mrs Ash to know where the document was "in case of accidents". She said it was in a crockery cupboard, behind the butter dish. She also indicated that Kieran had been to the house that evening and had been informed of the contents of the holograph Will so that he could make out a version in legal language. The occasion of this telephone call was very close to Mrs Sinclair's admission to the hospital because Mrs Ash recollected discussing with Mrs Sinclair what she should include in the belongings which she was packing to take with her to hospital. It could therefore well have been the evening before her admission.

[16] The content of Mrs Ash's evidence was not the subject of cross-examination and in her closing submissions counsel for the compearing defenders made no criticism of, or reservation concerning, that evidence. In my opinion the evidence from Mrs Ash of what the deceased told her prior to her admission to hospital gives considerable support to the evidence given by Mr McLernan of having seen a holograph Will prior to Mrs Sinclair's admission to hospital.

[17] In these circumstances I am well persuaded on the evidence that I should find in fact that shortly before her admission to the Bon Secours Hospital on 28 November 1994, having been advised by Mr McLernan that she could make a holograph Will, the deceased did make a holograph writing which she intended as a testamentary writing.

[18] Having made that finding in fact it is appropriate to examine more closely the evidence relating to the latest time at which it may be positively established that the holograph writing was extant.

[19] Mr McLernan's evidence was to the effect that he had seen the holograph writing on the evening which preceded Mrs Sinclair's entry to hospital. He thought it was a Sunday. From the hospital records it is evident that Mrs Sinclair was admitted to the Bon Secours on Monday 28 November 1994. The evidence of Mrs Ash is, to my mind, quite consistent with the Will being in existence on the eve of that admission. The second named pursuer, Father Kilpatrick, gave evidence on commission in view of his own ill-health. Father Kilpatrick was in regular, indeed almost daily, telephone communication with Mrs Sinclair and it appears that when Mrs Sinclair was concerned about her testamentary arrangements he encouraged her to discuss them with Mr McLernan, knowing Mr McLernan to be engaged in the law, in the broad sense. At some point, Mrs Sinclair told Father Kilpatrick that Kieran had "been here and everything has been arranged now and everything is all right." As to the timing of the parting to him of that information Father Kilpatrick placed it at some point between her seeing a specialist and entering the Bon Secours. In his evidence in chief he indicated that at the extreme it was not more than one month before she entered hospital. At a later point in his evidence he accepted that he might be mistaken about the period being as long as one month before her admission to hospital. He was clear that it was not very long before she went into the hospital. In assessing the evidence of Father Kilpatrick on this aspect of the case I would observe that - apart from the fact that his evidence was taken on commission and I have not had the opportunity of observing the witness personally - it appears that Father Kilpatrick and the deceased were in regular, if not daily, telephone conversations which continued on a roughly daily basis after her initial admission to hospital. As a matter of ordinary common experience where there are telephone calls of that regularity dealing with broad family matters, it will not infrequently be difficult for a witness to pinpoint in retrospection particular dates. It is apparent from his evidence that he had such a difficulty. In relation to Father Kilpatrick's evidence that difficulty is further enhanced by the fact that he was evidently not told in express terms of the actual making of a holograph Will, but rather that, simply, the problem had been resolved. The advice given by Mr McLernan to Mrs Sinclair regarding the possibility of making a holograph Will antedated his visit to her on the eve of her admission to hospital. Insofar as the evidence of Father Kilpatrick might be thought to be inconsistent with the evidence given by Mr McLernan and Mrs Ash, I prefer the evidence of what was said by the deceased to Mrs Ash and the evidence of Mr McLernan.

[20] In these circumstances I am persuaded not only that Mrs Sinclair executed a holograph writing with intended testamentary effect prior to her admission to hospital, but also that the writing was extant on the day preceding her admission to hospital on 28 November 1994.

[21] It is clear that on the death of Mrs Sinclair this holograph writing could not be found. It is, I think, plain from the evidence of Mr McLernan and Mr Kidd that a thorough search of the house was made following the death. Thereafter a further check was made with the hospital to see whether the Will had been contained within Mrs Sinclair's belongings in the hospital. The broad question therefore arising from the absence of the deed at the time of death is whether that absence indicates revocation of the deed by the deceased. I was addressed by counsel on various authorities relating to this issue.

[22] In anticipation of what he understood might be put forward on behalf of the defenders, counsel for the pursuers submitted simply that the true state of the law was that where a deed had disappeared when outwith the possession and power of the grantor, there was no presumption of revocation. In support of that proposition he referred to Young v Anderson (1904) 7 F. 128, per Lord McLaren, 135.

[23] Counsel for the defenders submitted that where a testamentary writing known to have existed was not to be found on the death of the testator, there was a legal presumption that it had been destroyed by the testator with the intention of revoking it. The authorities relied on were put before me by Mr Davidson, junior counsel for the defenders. In relation to this particular branch of his submissions on the law Mr Davidson began with Bonthrone v Ireland (1883) 10 R. 779 especially the passage in the opinion of Lord Young at 790. That dictum had been followed by Lord Guthrie in the Outer House decision in Clyde v Clyde 1958 SC 343. Counsel further referred to Winchester v Smith (1863) 1 M. 685 and Crosbie v Wilson (1865) 3 M. 870. The case of Young v Anderson to which counsel for the pursuer had referred was, said Mr Davidson, special in its facts since the Will in question was known to have been in existence on the death of the testator but had disappeared subsequently. Counsel then mentioned two, more recent, unreported decisions which I understood him to say illustrated the continuing application of the legal presumption in favour of revocation. Those decisions were Conner v Brown (25 August 1989, Lord Weir) and Morrison v Morrison (5 June 1992, Temporary Lord Ordinary Horsburgh).

[24] In considering these submissions it is I think convenient to begin, as did junior counsel for the defenders, with Bonthrone, which he described as the leading case. The particular passage relied upon is the opening paragraph in the opinion of Lord Young which reads as follows:

[25] I would observe that Lord Young's formulation of what he terms the legal presumption proceeds on the basis that the known facts are restricted to (i) the testamentary writing having been executed; (ii) its subsequently being in the testator's custody and (iii) its absence at the death of the testator. On the succeeding page of the report of his opinion Lord Young refers to the conflicting averments in the case before him concerning the alleged circumstances of the destruction of Mr Bonthrone's will and continues thus:

[26] The earlier case of Winchester v Smith was an action to prove the tenor of a mutual Will. In the opinion returned by the majority of the consulted judges the requirements for such an action were described (689) as being proof "not only that such a writing existed and that it was expressed in the terms alleged by [the pursuer] but likewise that it had been lost or destroyed in some way which it did not affect its validity". Having indicated their belief that the pursuer had adduced sufficient proof of the first of those two requirements those judges went on to say:

Having expressed themselves thus, those judges proceeded to consider the facts. The decision, particularly so far as the other judges in the case are concerned, is principally a decision on its facts.

[27] In Crosbie v Wilson the testatrix executed her Will in duplicate leaving one copy with an agent and keeping the other in her house. On her death the latter copy was discovered to have been cut, with scissors, into six parts, only three of which were found. Two of those had then been stitched together. The Lord Justice Clerk (Inglis) at 877 stated:

The Lord Justice Clerk then went on to point out that, on the evidence, the document in question had not been kept in a lockfast place but had been accessible to a particular servant and to others and in those circumstances the mutilation of the copy in the house of the testatrix was not shown to have been the act of the testatrix. Lords Cowan and Benholme appear to approach the matter as essentially one of fact, holding that the destruction or mutilation should not be attributed to an act of the testatrix. For his part, Lord Neaves also appears to reject the proposition that there was any presumptio juris since (880 foot) he says:

The remaining Inner House case to which I was referred was Young v Anderson in which an action was brought in 1903 to prove the tenor of a Will made in 1848. The Lord Ordinary having in accordance with the then prevailing procedure made great avizandum, the proof in the Inner House was taken by Lord Adam. It appears from the report that there was no doubt that the deceased had made a Will on 13 November 1848. There was a dispute whether the deceased died later that day, or five days subsequently, on 18 November 1848. In the event, Lord Adam considered the evidence to demonstrate death to have occurred on the same night as the execution of the Will. There was also evidence indicative of the Will's having been in existence after the death - principally the evidence that the estate had been administered over the years precisely in the manner provided for in the settlement in issue. The executry papers had been moved from one law agent to another. It appears to have been argued on behalf of the defenders that in a case wherein the testamentary writ could not be found there was a legal presumption that it had been cancelled by its being destroyed by the testator, which legal presumption could only be overcome by clear proof to the contrary. In regard to that argument Lord McLaren said:

[28] In relation to the Outer House decisions put before me, in Clyde v Clyde Lord Guthrie applied the statement of law contained in Lord Young's dictum in Bonthrone and treated Young v Anderson as being a case with entirely special circumstances, in the light of which the passage quoted above from Lord McLaren's opinion required to be read. Applying the Lord Young dictum it was insufficient to overcome the presumption of revocation of the deed (which, it may be noted, in Clyde was not said ever to have been out of the custody of the deceased) that there were averments, on behalf of the pursuer, that the deceased had been benevolent to the pursuer during life and that he and the deceased had always been on excellent terms, which was all that the pursuer offered to prove.

[29] The unreported Outer House decisions were acknowledged by counsel for the defenders as being essentially decisions of fact and I do not find them to be of any great assistance.

[30] At their extremities the dicta in the cases to which I was referred may not always be entirely consistent. What I take from them for present purposes is this. It is plainly not sufficient simply to aver and prove that a testamentary deed executed by a testator and subsequently in his actual custody is no longer extant at his death, if only for the reason that those simple facts alone provide no basis for holding that the absence of the deed is not the result of a decision by the testator to revoke its provisions by destroying the deed itself. There must be averred and proved circumstances which, in the particular case, offer a real possibility that the loss or destruction of the deed occurred otherwise than by destruction by or on behalf of the testator animo revocandi. Where the existence of such circumstances is averred and proved, the decision whether the absence of the testamentary writ is attributable to the possibility or possibilities thus identified, or to the exercise by the testator of his power of revocation by destruction, is one to be arrived at on the balance of probabilities. It respectfully seems to me that in drawing attention to the need to be alert to the nature of the writing whose tenor is sought to be established in deciding on the sufficiency of the evidence of the casus amissionis the majority of the consulted judges in Winchester v Smith were effectively identifying an important factor in that ponderation of probabilities. The fact that the writ is one which is revocable by destruction at the hands of its author means that revocation by that method will ordinarily be a quite probable explanation for the absence. Likewise, as Lord Young appears, to my mind, to recognise once there are other facts in issue beyond the mere fact of the absence of the deed, while the probability of the writ having been destroyed with a view to its revocation still persists, the weight or value to be attached to it is diminished. As Lord Young puts it, the presumption "loses much, though not all, of its importance". As his Lordship further puts it, the court then has "to determine on the evidence what is the truth of the matter".

[31] I therefore turn to the evidence possibly pertinent to the question whether the absence of the holograph Will at the date of Mrs Sinclair's death is accountable to loss under circumstances not involving destruction by Mrs Sinclair with a view to cancellation of the Will.

[32] One aspect which plainly has to be considered is the extent to which Mrs Sinclair retained physical custody of the writing. It has to be said at the outset that there was no evidence of Mrs Sinclair's having taken the holograph Will to the Bon Secours when admitted initially, or of her having asked that it be brought to her in that, or any other, hospital.

[33] On the assumption that Mrs Sinclair left her Will in her house when she departed for the hospital on 28 November 1994, one looks to what happened respecting the general security of the house and the extent to which others had access to it.

[34] While Mrs Sinclair was in hospital keys to the house were held by Mr and Mrs Daly. From the tenor of his evidence Mr Daly's visits to the house while Mrs Sinclair was in hospital were sporadic and well separated and I did not have the impression from her evidence that Mrs Daly was regularly checking upon the security of the house. It is however plain on the evidence that during the time when Mrs Sinclair was in hospital her house was the subject of housebreaking.

[35] A police constable, David Easdale, gave evidence to the effect that around midday on 25 January 1995 he had been instructed to attend at Mrs Sinclair's house. He there met with a Mr Barr, a window cleaner, who had discovered the housebreaking, entry having been gained through one of the windows from which glass slats had been removed. Having himself gained entry to the house PC Easdale noted that in the rear livingroom what he recollected as being a chest of drawers had been opened. There were also various papers spread over the floor. What he had initially described as being a chest of drawers was later further described by him as having doors on either side and as being a free-standing article of furniture. What is termed by the police officer as the rear livingroom appears clearly to be the livingroom referred to by Mr McLernan in which was to be found the sideboard within which he suggested placing the holograph writing. PC Easdale took, from the open drawers and the presence of papers lying on the floor, that there was clear evidence of unauthorised entry and of disturbance of the contents of the rear livingroom, but naturally he could not tell what, if anything, had been taken from the house. PC Easdale also made contact with Mr Daly, and was told by Mr Daly that the last check made by him on the house had been on Boxing Day, 26 December 1994. In his evidence, Mr Daly could not recollect how long it had been since he had been in the house. Accordingly, the house appears to have been broken into on at least one occasion between Boxing Day 1994 and 25 January 1995. In his evidence Mr Daly expressed the view that there was effectively no one who was looking after the house, although he and his wife occasionally visited it to pick up mail. The evidence given by PC Easdale was not challenged by way of cross-examination, nor was its reliability the subject of criticism by counsel for the compearing defenders in her closing submissions.

[36] Mrs Daly's evidence concerning the discovery of the housebreaking on 25 January 1995 was to the effect that, news of the housebreaking having already been communicated otherwise to Mrs Sinclair, she was given by Mrs Sinclair a list (No.34/4 of process) of things which Mrs Sinclair wished her to take from Mrs Sinclair's house to her own for safe keeping. The list is written on the reverse of an envelope and asks Mrs Daly to check on the presence of a gold watch belonging to Mrs Sinclair's late husband, certain items of jewellery, a credit card, handbags and furs. It concludes with the reference "bank books in sideboard". Although the terms of the envelope suggest that the request was simply to check on the continued presence of those items, according to Mrs Daly's testimony she removed the listed items other than the gold watch, which she was not able to find. According to Mrs Daly the bedroom was upset and disordered, but not the rear livingroom. Further, Mrs Daly deponed that she took no action to tidy up the aftermath of this evidence of a prior housebreaking.

[37] At this point I would interpose that I have no reason to question in any significant sense the evidence given by PC Easdale to the effect that he found clear evidence of the house having been broken into with the contents of the rear livingroom having been disturbed. Given his description of the item of furniture, it is in my view highly probable that he is referring to the "sideboard" there being, as I understood it from Mr McLernan's brief description of the furniture in the rear livingroom, no other article which would accord with that description. As I have already indicated it was not suggested by counsel for the defenders that there was any basis for questioning or criticising the evidence given by the police constable although, in fairness, it may be noted that in her submissions counsel for the defenders appeared wrongly to have understood that the room in which the constable had observed the disturbance was a bedroom.

[38] What occurred regarding the tidying up in the aftermath of that housebreaking rests unclear. The housebreaking had resulted in the scattering of papers over the floor. It is at least possible that the documents observed by PC Easdale were removed by whoever attended to the tidying up of the mess and that in doing so, the holograph writing, were it among them, was destroyed. Mr McLernan deponed that he was told at one point by Mrs Daly that the house had been in a terrible mess and that she had cleared it up. Mrs Daly, for her part, denied having taken any action whatever to restore order in the house following the housebreaking. On the other hand, there is nothing in the evidence from Mr Kidd or Mr McLernan to the effect that when they attended shortly after the death there was any disorder in the house.

[39] Subsequent to the discovery of that housebreaking on 25 January 1995, there occurred a second housebreaking, the evidence regarding which is yet more lacking in detail and clarity. The principal source was Mrs Daly, who was clear enough in her testimony that there had indeed been a second break-in but she was professedly unable to recall any details of it, the approximate date of its occurrence, or whether it was ever reported to and investigated by the police. She thought that she had reported it to Mrs Sinclair and she also thought that the signs indicative of that housebreaking were in the same location as those of the first housebreaking.

[40] It is also necessary to consider the evidence of what was said or done by the deceased after her admission to hospital, insofar as perhaps potentially casting light on the reason for the absence of the holograph Will at the date of her death.

[41] In his evidence in chief Mr McLernan indicated that while he had advised Mrs Sinclair that a holograph Will would be effective and would "cover her" while in hospital for tests, she nonetheless wished that he prepare a formal document despite his unwillingness to do so. Sometime after her admission to hospital and after it was evident that she was no longer in hospital for investigatory purposes, he learned from Father Arthur that Mrs Sinclair had suffered a stroke and was "at death's door". He therefore decided to type out in a more formal deed that which he had seen in the holograph writ and in due course went to see her in hospital. In the event, said Mr McLernan, Mrs Sinclair was much better than he had been led to believe. He read the typescript (No.6/2 of process) to her and made plain that whilst the house was to be shared two-ways the rest of the estate would be shared three-ways. He asked Mrs Sinclair if she would be able to sign it. Mrs Sinclair then agreed to see if she could sign. She made an attempt to sign on the back of an envelope, but her signature was shaky and incomplete and she gave up. According to McLernan, the question whether Mrs Sinclair might be able to sign her name arose on some subsequent visits but he never took that typescript draft Will out of his pocket again.

[42] In relation to the dating or timing of this incident, Mr McLernan initially deponed (on the afternoon of the first day of the proof) that it had occurred before he himself departed on a two week trip to Canada on 23 January 1995. Having been cross-examined that afternoon in relation to the hospital records, relating largely to notes of the ability of Mrs Sinclair to sign documents and certain cerebrovascular incidents, which raised a question relating to the accuracy of his evidence of the timing of the attempted signing of the envelope, Mr McLernan recognised early in the succeeding day of his cross-examination that his recollection of the timing of this episode might be faulty and it might indeed have been subsequent to his return to Scotland.

[43] While the change in the timing of the signing episode naturally prompts one to examine the reliability of Mr McLernan's evidence, I do not consider the timing to be of materiality, or to affect his reliability, in this branch of the case. The cross-examination proceeded largely on the assumption that the testatrix was unable to sign and that the only evidence of her inability to sign documents came subsequently. However, as Mr McLernan made clear elsewhere in his evidence, he did not believe Mrs Sinclair to be unable to write or to sign. All that happened was that she found her signature to be shaky. Questions of timing left aside, Mr McLernan's evidence of Mrs Sinclair's having attempted to sign an envelope in the expectation of her being able to sign the typed version is not, in itself, in any way inconsistent with her having executed a holograph Will in effectively similar terms, which was still in existence.

[44] Counsel for the defenders sought however to associate this matter with what is averred in Answer 4 for the defenders at page 11D to 12B of the Closed Record regarding a visit said to have occurred on a Sunday when the first named pursuer visited the deceased at a time when it is averred Mrs Daly and a Mrs McCarrie were present.

[45] In that regard evidence was led from Mrs McCarrie, a retired teacher, who, along with her husband, had formed an acquaintanceship with Mrs Sinclair and her husband when they met while each couple was on holiday in Cornwall around 1960. The friendship had continued thereafter. Mrs McCarrie deponed that she thought that Mr McLernan's shrieval appointment had impressed Mrs Sinclair. Mrs Sinclair, she said, was very fond of Father Arthur Kilpatrick. She had first met Mr McLernan when Mrs Sinclair was in the Western. Her visit to Mrs Sinclair had coincided with a visit by Mr McLernan, who had brought some champagne to cheer up Mrs Sinclair. On a subsequent occasion she had met Mr McLernan when she was visiting the deceased in the hospice. Mrs Daly was also visiting the deceased. This was the first time, she said, that she had met Mrs Daly. According to Mrs McCarrie's account, Mr McLernan came into the ward with a paper in his hand. Mrs McCarrie made to leave but Mrs Sinclair said that she should wait. Mrs McCarrie therefore went over to the window while Mr McLernan was with Mrs Sinclair. After Mr McLernan had left, she returned to Mrs Sinclair and saw that Mrs Sinclair was upset and red in the cheeks. She initially said in evidence that she heard Mrs Sinclair say something about "the cheek of him" but the witness quickly qualified that by saying that she really could not remember at all the words which had actually been spoken. She did not know what the paper held by Mr McLernan was. She did not think anything about the incident at the time and it was only afterwards that she assumed that the paper was a Will.

[46] According to Mrs Daly, her first meeting with Mr McLernan was when visiting Mrs Sinclair at the hospice on that Sunday. She said that Mrs McCarrie was there with her. In their joint presence, Mr McLernan took from his pocket a sheet of A4 paper, folded in three, and passed it to Mrs Sinclair saying that it was something which he had drawn up. The deceased looked at it, folded it back, and returned it saying that she was "not signing anything". There was then a general conversation, including reference to Mr McLernan's spouse. After Mr McLernan had left Mrs Sinclair was upset and said "The cheek of him, wanting my money, he's got plenty of his own."

[47] On these matters being put to him, Mr McLernan's response was to indicate that in many aspects the version did not accord with his own recollection. He did recollect having met Mrs McCarrie in the Western. There was, he recollected, an occasion when he visited Mrs Sinclair in the hospice when Mrs Daly was there, and another lady was present but he was unsure whether that lady was Mrs McCarrie. There had been some ordinary bedside talk. He had then made a remark to Mrs Sinclair to the effect that the grip on her hand was better and she might be strong enough to sign her own name. However, he had pursued matters no further since she gave him a look which indicated her wish not to pursue that topic. He therefore continued ordinary bedside conversation and in due course left the room. He said that he could tell that Mrs Sinclair had been irritated by his having raised the topic of her ability to sign and he attributed her irritation to having touched on her private affairs in the presence of Mrs Daly and the other visitor.

[48] It is also to be noted that, according to Mrs Daly, while in the Eastwood Nursing Home the deceased said that she would "get her affairs in order" when she was at home and for that reason she wished to get home.

[49] A further element in this general branch of the case is the evidence given by Mr McLernan relating to a discussion between him and Mrs Sinclair in March 1995 while Mrs Sinclair was yet in the hospice. It was to the effect that Mrs Sinclair then wished to make provision for leaving something to Mrs Daly and a legacy to the monasteries at Pluscarden and Nunraw. It was Mrs Sinclair herself who had raised this topic. His response had been approving, particularly since Mrs Daly had been attentive in looking after her. He had advised that this request would have to be attended to by being laid out in a codicil - he thought he explained it to Mrs Sinclair "something added on" - but at that point Mrs Sinclair rather "ran out of steam" and concluded by saying "well you know what I want". He regarded himself as honour bound to attend to those wishes.

[50] Having thus set out in summary the evidence pertinent, or potentially pertinent, to the issue under consideration at this point, I begin my assessment of that evidence by stating what is perhaps obvious, namely that the proposition that the Will was destroyed by Mrs Sinclair herself with a view to its revocation requires either that she took the deed with her on her admission to the Bon Secours Hospital and destroyed it at some point thereafter, or that she destroyed it in the interval between Mr McLernan's seeing it on the day preceding her admission and her leaving the next morning for the hospital.

[51] As I have already mentioned, there is no evidence at all of the Will ever having been seen in the Bon Secours or any other of the hospitals or of the deceased's every having spoken of having taken it with her. Mr and Mrs Daly were, it seems, the only key holders and they were never asked to bring the Will to Mrs Sinclair in hospital. I would remark that as a matter of general experience a testament is not commonly included among the ordinary articles which a patient takes to hospital, particularly if the admission is thought to be merely for investigation. Further, the general picture of Mrs Sinclair's character which emerged from the evidence was that she did not readily discuss or disclose her private affairs. I think it would not be at all likely that she would wish to risk her Will being seen fortuitously by the staff or others in hospital. More specifically, the evidence of Mrs Ash to the effect that she was told by Mrs Sinclair that the holograph document was behind the butter dish "in case of accidents" points strongly to Mrs Sinclair having the natural intention of leaving the Will in her house while she was in hospital. It may also be noted that at the time of the death the assumption of all concerned was that the Will would be in the house and it appears that only after it could not be found in the house was a double check made of the items in the hospital. Plainly, if the Will was not with the deceased in hospital, it could not have been destroyed by her after her admission on 28 November 1994.

[52] On the other hand, counsel for the defenders put forward various considerations which, as I understood it, counsel suggested were indicative of the Will's having been destroyed by the deceased herself.

[53] First, counsel for the defenders placed weight on the evidence of Mrs Daly that following the deceased's becoming aware in January 1995 of the first discovery of a housebreaking at her home, she asked Mrs Daly to take certain items into safe keeping. Those items did not include the Will. The failure to mention the Will among the items to be taken into safe custody "spoke volumes", according to counsel.

[54] Secondly, counsel for the defenders invoked what she described as a "lack of settled intention on the part of Mrs Sinclair". Thus, according to Mrs McLernan, while on one occasion Mrs Sinclair had said that she wished both Father Arthur and Kieran to have the house, on another occasion she had said that Kieran alone should have it. That, said counsel, gave support to a presumption of revocation. However, in that respect I would observe that it appeared from Mrs McLernan's evidence that those remarks were made some considerable time before the deceased's admission to hospital. As further evidence of lack of settled testamentary intention, counsel for the defenders founded on the evidence given by Mr McLernan of Mrs Sinclair's expressing a wish in March 1995 to leave a bequest for "Paddy" and the monasteries. However I would observe that expression of that wish in March 1995 is not at all inconsistent with a belief that the holograph Will was extant and it may be significant that on the evidence thus invoked by counsel for the defenders, Mrs Sinclair said nothing to Mr McLernan suggestive that she had destroyed or revoked the previous holograph Will.

[55] In the same general context, Miss O'Brien relied on the evidence given by Mr McLernan himself regarding the typed version of the Will. Counsel said firstly that Mr McLernan's evidence of Mrs Sinclair's attempt to sign, on an envelope, wherein she was not able to persist, further indicated her having formed a different testamentary intention. As already indicated, in my view this particular part of the evidence does not support the interpretation which counsel for the defenders sought to place upon it. Mr McLernan's evidence was to the effect that the text was first read to her and explained to her following which she indicated a willingness to try to sign. The fact that she did not persist with a signature which was shaky, is not inconsistent with the existence of a continued belief that the holograph Will existed. Indeed, it may indicate the reverse.

[56] Secondly, counsel for the defenders founded heavily on the evidence of Mrs Daly and Mrs McCarrie regarding the episode in the Prince and Princess of Wales Hospice to which reference has already been made. Counsel invited me to prefer the evidence of Mrs Daly and Mrs McCarrie and, in consequence, to treat the evidence given by McLernan of not having taken the typescript form of Will out of his pocket after Mrs Sinclair's first attempt at signing an envelope as being unreliable evidence.

[57] While it is plain that there are inconsistencies between the accounts given by each of the three witnesses, there is common to all the fact that at the conclusion of this visit to the deceased by Mrs Daly, Mr McLernan and another lady who, although not recollected specifically by Mr McLernan as being Mrs McCarrie, I am prepared to hold as being Mrs McCarrie, Mrs Sinclair was upset. Mr McLernan sought to attribute this upset to his having raised the question of Mrs Sinclair's ability to sign in the presence of Mrs Daly and that other lady or person. In relation to whether, as an adjunct to discussing her ability to sign, Mr McLernan may have brought out a document there are indeed inconsistencies between not just Mr McLernan but also Mrs Daly and Mrs McCarrie. The latter described Mr McLernan as coming into the room holding a paper in his hand. For my part, having observed Mr McLernan's manner and personality in the witness box, I find it utterly unlikely that he would approach Mrs Sinclair in that manner openly holding a typewritten text of a Will in his hand. For her part, Mrs McCarrie accepted that she had not seen what this document or paper was. Nor did she have any recollection of what Mrs Sinclair had actually said afterwards. Mrs McCarrie further accepted that at the time she did not really think anything significant about what had occurred. I have to say that my impression was that Mrs McCarrie's evidence while no doubt genuinely expressing her current beliefs, was affected by a deal of retrospective assumption, assisted no doubt in part measure by the questioning and precognition involved in the preparation of this case.

[58] It is also the case that Mrs Daly did not see what was written on the sheet of paper which she says she saw given to Mrs Sinclair. Again, given that - as Mrs McCarrie put it - Mrs Sinclair was a "very private person" and my assessment of the manner in which Mr McLernan would go about such matters, I would find it surprising were he to invite discussion of the content of a Will in the presence of Mrs Daly simply by producing the document in the manner described by her. I have to say that I detected in Mrs Daly's evidence some hostility towards the first pursuer. Mrs Daly was contemporaneously unaware of the existence of the holograph Will and I noted that at one particular point in her evidence she expressed resentment that, if it existed, this had not been entrusted to her confidence at the time. She saw herself as having been used. I suspect that with the advent and continuance of this dispute Mrs Daly has read more into Mrs Sinclair's upset than might be objectively justified and has come to believe certain material additional assumptions. On the other hand, I also suspect that on the occasion of this visit Mrs Sinclair's ability or willingness to sign a formal document may have been discussed or pursued to a somewhat greater extent than was recollected and described by Mr McLernan and that the deceased was correspondingly more upset at his attempt to raise the matter of her testamentary arrangements in the presence of Mrs Daly.

[59] All that said, and much more importantly, I do not see the particular detail of this episode to be of materiality to the issue arising. What one has, at best for those contending for destruction by Mrs Sinclair with the intention of revocation, is simply an unwillingness on the part of Mrs Sinclair to sign a document or discuss her intention respecting her testamentary wishes at that particular point in time and under those particular circumstances, involving the presence of Mrs Daly and Mrs McCarrie. I do not consider that it really casts much light at all on what may have been done by Mrs Sinclair to her Will between making it and entering the Bon Secours some months before in November 1994.

[60] Looking to the other side of the question, it is apparent from the evidence that on two occasions the house was discovered to have been the subject of housebreaking. A holograph Will is not something which a housebreaker would ordinarily seek out for its intrinsic value - and on that account, the omission to include the Will on the list given to Mrs Daly to check does not, to my mind, have the significance which counsel for the defenders sought to attribute to it. However it is also clear from the evidence of PC Easdale that the room in which it was said by the first named pursuer that the deceased intended to leave the Will was disturbed with various papers strewn about the floor. That the Will was to be left in that room is consistent with what was said by Mrs Ash in her evidence. The evidence relating to how the papers disturbed in the housebreaking were tidied up or disposed of is not clear. Given that Mrs Daly was the key holder, and given the admission by defenders on record that "a neighbour, namely Mrs Daly, who was entrusted with a key, tidied up and restored order". I have to say that I find curious, in the least, her position in evidence that she did nothing whatever to tidy up and confined her activities merely to removing certain items listed in the envelope to which reference has already been made. Counsel for the defenders stated in the course of her submission that she accepted that Mrs Daly's evidence regarding the burglaries was not very satisfactory. On the whole matter, I consider that the housebreakings and the restoration of order in their aftermath do provide a possible, and possibly coherent, explanation for the absence of the Will at the death of Mrs Sinclair.

[61] Is that explanation more probable than destruction animo revocandi by the deceased? I have ultimately come to the view that it is the more probable explanation. I find it very difficult to accept that, having been anxious to the extent described in the evidence, (particularly that of Mrs Ash, Father Arthur and Mrs McLernan) to have a Will before going into hospital; having gone to the extent of getting Mr McLernan to cast his approving professional eye over her writ; and having been at pains to tell Mrs Ash of its existence and location, Mrs Sinclair should then tear up the deed in the hours before entering hospital for exploratory procedures. And, for the reasons already indicated, I also find it very difficult to believe that she would ever take her Will with her into hospital. It is also of significance that, as counsel for the pursuers observed, following her entry into hospital Mrs Sinclair ceased to make any real mention of any desire or need to make testamentary arrangements. Accordingly, judging matters as best I can, I find as a matter of probability that Mrs Sinclair left her holograph Will in her house when she went into hospital on 28 November 1994 and that the holograph Will was either taken by those responsible for the housebreaking, or, perhaps yet more probably, accidentally disposed of by whoever conducted the task of cleaning up the aftermath of the housebreaking or, yet for some other reason attendant on the insecurity of the house and the absence of the testatrix's physical control of the deed.

[62] The foregoing findings are of course not conclusive of matters since it is for the pursuers to establish that the terms of the missing holograph deed were of the tenor claimed in the first conclusion of the summons.

[63] Counsel for the defenders accepted, in my view correctly, that it was not necessary for a pursuer in an action of proving of the tenor to produce a written "adminicle" - that is to say a draft or copy - and that the terms of the missing writ could be proved by parole evidence alone, which now need not be corroborated. It was also not disputed by counsel for the pursuer that the precise words need not be proved, provided that the substance of what was written was established to the satisfaction of the court. [Stair IV 32, 9; cf. Rannie v Ogg (1891) 18 R. 903, 910]. I also did not understand counsel for the defenders to take issue with the proposition advanced by Mr Stewart for the pursuers that it was not necessary to prove the tenor of every part of the deed [Stair IV, 32, 5]. Her approach was, rather, to question the reliability of the first pursuer's account of the terms of the holograph writ by reference to the evidence given by Mr Kidd. As already indicated, Mr Kidd was a solicitor with the firm who held the title deeds to the house and he assisted in the search for the holograph Will. A little time thereafter Mr Kidd left the firm to take up office in the public sector. His involvement with this particular case was very short lived and he frankly stated that he had little, if indeed any, active recollection of any of its particularities going beyond what he had recorded in his file notes, to which he had last been alerted in the fortnight preceding the proof, when precognosced by solicitors for the parties.

[64] The principal file note of Mr Kidd relevant to present purposes, is No.39/1 of process. It is written, in scribbled manuscript, on the reverse of a legal aid form. According to Mr Kidd, he wrote it at some point in the afternoon of Saturday 22 April 1995, he having during the course of the forenoon accompanied Mr McLernan to the house in Stamperland Avenue in the endeavour to find the holograph Will which Mr McLernan firmly believed to exist. The file note was simply written for the purposes of charging a fee. The note is not distinguished by its legibility and indeed its very author was in much doubt in deciphering his own handwriting. On his eventual best effort, the material parts of the note appear to read as follows:

In her submissions counsel for the defenders fastened particularly on two aspects of this file note. The first was its reference to a "codicil"; the second was the concluding reference to "Paddy to get £1,000" followed by some uncertain indecipherable words. This, said counsel, indicated that Mr McLernan's recollection of the holograph Will was so confused that it could not be set up in the present proceedings. Mr Kidd, said counsel, was to be accepted as a credible and reliable witness against whom the reliability of Mr McLernan's evidence must fail.

[65] In my view no issue arises regarding Mr Kidd's truthfulness. But so far as his reliability goes, he made wholly plain that he had no true recollection of events - a matter perhaps underscored by his confessed difficulty in reading his own handwriting on the file note or indeed in hazarding a guess as to the matter to which the difficult decipherable words might refer. It is evident that the note was hastily scribbled out on the Saturday afternoon and that its principal purpose was not to record precisely what had been said or had not been said during the forenoon but to provide a record of the time spent and the mileage involved for the purposes of charging a fee. As a measure against which to test the reliability of Mr McLernan's recollection of the Will, it has manifest deficiencies.

[66] That apart, I am not persuaded that there is any such stark contradiction between the scribbled note and the evidence given by Mr McLernan as to cast any serious doubt on the latter. As counsel for the defenders herself recognised, the phrase "codicil to Ailish" might well be seen as a way of expressing the marginal note on the holograph Will - the marginal note being essentially an addition. So far as the reference to "Paddy" is concerned, it is to be observed that the reference occurs at the end of the file note and following reference to a codicil to Ailish. Mr McLernan's evidence was of course of the deceased having orally indicated - at a later stage in her illness - a wish to benefit Paddy and the monasteries, a wish which he would have honoured knowing what she had desired. Mr McLernan thought that he had a recollection of mentioning to Mr Kidd that the deceased had expressed these oral wishes.

[67] The file note, given the circumstances in which it was made, is to my mind broadly consistent with (a) a description of the holograph Will in so far as benefiting Father Arthur and the pursuer (b) its treating the marginal addition as a "codicil" and is not inconsistent, in its inclusion at the end of the reference to "Paddy" (and the indecipherable words) with the oral expression of the deceased to benefit Paddy and the Monasteries. Insofar as it was suggested that Mr McLernan might have misrecollected the terms of the holograph Will by omitting the reference to Mrs Daly and the monasteries, I think it of some significance that in the version which Mr McLernan typed out, endeavouring to give effect in formal terms to the holograph Will, Ailish is included in the participation in the moveable estate and no reference is made to any bequest to Mrs Daly or the monasteries. Had there been any reference in the holograph Will to a bequest in favour of Mrs Daly or the monasteries I believe that Mr McLernan would have included those bequests in his typed version. In light of the foregoing I am not persuaded that Mr Kidd's evidence provides any good ground for rejecting Mr McLernan's evidence of the tenor of the holograph Will written by the deceased shortly before her admission to hospital, the terms of that holograph Will being best described in the reconstruction in the manuscript portion of No.6/1 of process.

[68] I accordingly conclude that it is established that the deceased did execute a holograph Will; that it terms were of the general tenor set out in McLernan's reconstruction No.6/1 of process which is repeated in the first conclusion of the summons; and that the holograph writ was lost or destroyed in circumstances when it was outwith the physical custody of the testatrix and thus without any intention of revocation on her part. The pursuers are accordingly entitled to decree in terms of that conclusion.

[69] The other remaining matter is the second conclusion which is in these terms:

My distinct impression was that neither side had given this aspect of the case any great thought, having concentrated, perhaps understandably, on the evidential aspects relating to the proving of the tenor of the Will. Counsel for the pursuers simply submitted, without any elaboration, that as a matter of construction the terms of the Will as set out in the reconstruction No.6/1 of process, had the effect as set out in the second conclusion. For her part, counsel for the defenders simply invited me to make no order and to put the case out for consideration of further procedure on this aspect. This was, and is, an unsatisfactory situation.

[70] In my provisional view the inclusion of this declaratory conclusion is premature and anticipates matters which might yet arise in the administration of the executry estate, whose extent is not yet known, no executors being in place, and in terms of which the holograph Will might not be a universal settlement. It may of course be that as a matter of reality the terms of the holograph Will effectively operate as a universal settlement. But nothing is averred in the pleadings, and consequently no evidence was led, in relation to the extent of Mrs Sinclair's estate. Were it to transpire on investigation of the executry estate that the testatrix owned a large villa in Florida or, perhaps less extreme, a cottage in Aberfeldy, questions might materially arise as to whether those heritable properties were carried with the reference to the deceased's other, entirely moveable estate.

[71] In these circumstances, before finally disposing of the case, I shall put the case out By Order in order that counsel may address me further regarding the second conclusion.