Lowson, Company v Ford, Company
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1866 |
| Date | 20 March 1866 |
| Docket Number | No. 124 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. R.
Succession—Testament—Testamentary Writings.—
MISS JEAN BELL, residing in Dundee, died there on the 6th of November 1862, and left a trust-disposition and deed of settlement, dated 21st September 1853. By this deed she conveyed her whole estate to trustees for the purpose of discharging all her debts, of providing for payment of certain special legacies, and of securing the whole of her remaining estate in liferent to her only brother Samuel; and, after his death, of securing certain liferent provisions to her nieces, Miss Margaret Rankine Ford and Miss Barbara Ford; and of making payment of certain other legacies, the residue of the estate being provided for behoof of her nieces and nephew, Eliza, Margaret, and James Flowerdew, and Mrs Helen Flowerdew or Lowson, wife of William Lowson; declaring that the whole sums belonging to the testatrix, ‘which were to be liferented by the said Margaret Rankine Ford and Barbara Ford, should, upon the death of the survivor of them, be comprehended in the residue of the trust-estate.’ The trust-deed concludes with the following clause:—‘Reserving always my own liferent of the premises, with full power to me at any time of my life, and even on deathbed, by a writing under my hand, to alter, innovate, or revoke these presents, in whole or in part, as I shall think proper, and to alienate, burden, or otherwise dispose of the means and estate, heritable and moveable, hereby disponed; but in so far as these presents shall not be altered, the same shall be valid and effectual, though found lying by me, or in the custody of any other person for my behoof, undelivered at the time of my death, with the delivery whereof I have dispensed, and hereby dispense for ever.’ This deed was prepared by Mr Reid, writer, Dundee, Miss Bell's agent, who was also one of the trustees nominated in the deed; and, after execution, the deed was delivered to Miss Bell, and was retained by her till her death.
Samuel Bell, the truster's brother, died on the 4th of December 1860, and Miss Margaret Ford died several years previous to that date, both predeceasing the testatrix.
In MISS Bell's repositories there were found after her death four papers, all holograph of the truster, written on separate sheets of letter-paper, and lying beside the trust-deed. The first, dated 17th March 1854, in the following terms:—‘A Codicil.—The Five Schemes of the Church of Scotland, L.19, 19s. each; the Industrial School, L.19, 19s.; the Female Society, L.19, 19s.; the Infirmary, L.19, 19s.; the Indigent Gentlewomen Fund, L.19, 19s. (Signed) JEAN BELL. This is to be handed to Mr Reid to add to my settlement. (Signed) JEAN BELL.’ The second, dated 29th April 1856, in the following terms:—‘To be handed to Mr Reid, a codicil to my deed; should I be taken away suddenly, my trustees would act upon it the same as if it were written as a codicil to my settlement. (Signed) JEAN BELL. The Five Schemes of the Church of Scotland, L.200. (Signed) JEAN BELL. Female Society, L.19, 19s.; Industrial School, L.19, 19s.; Infirmary, L.19, 19s.; Female Education in India, L.19, 19s.; Indigent Gentlewomen of Scotland, L.19, 19s. These sums to be paid after my brother's death, as I wish him to enjoy the whole income, both his own and mine, so that he can have the society of his friends if he feels inclined. (Signed) JEAN BELL. There is L.500 deposited in the Dundee Bank, payment from the town of the late Dr Ford and the late Miss Ford's annuity bonds, which I wish Miss Barbara Ford to enjoy the liferent of. I am looking for a good investment for it. (Signed) JEAN BELL. 29 April 1856, Miln's Buildings, P, S.—There is L.60 of interest still in the towu unpaid. It belongs to Miss Barbara Ford, as I promised it to her when her brother died. (Signed) JEAN BELL.’ The third, twice dated 20th February 1862, in the following terms:—‘Miss Flowerdew, L.2000; Mrs Lowson, L.1000; Mrs M'Indow, L.1000; Mr James Flowerdew, L.500; Mr William Flowerdew, L.500; the Schemes of the Church, L.100, the Infirmary, L.50; the Female Society, L.50; the Eye Institution, L.50; the Industrial School, L.50; the Orphan Institution, L.50; the Indigent Gentlewomen of Scotland, L.50; the East Church Mission, L.25; the Clothing Society, L.25; Margaret to get my clothes, a bed and beading bedding. (Signed) JEAN BELL, 20 February 1862. Grace Moram, L100; Margaret Moram, L.500. (Signed) JEAN BELL. 20 February 1862.’ The fourth, in these terms:—‘Mrs Shaw, L.100; Miss, L.100; Miss A. Shaw, L.100; Miss M, Shaw, L.100. (Signed) JEAN BELL. 1862. Miss Thorns, L.100; Miss II. Thorns, L.100; Mr William Thorns, L.100; the Walkers, L.100, to be divided amongst them.—1862, March 20, March. (Signed) JEAN BELL.’
The present action of multiplepoinding was raised by Miss Bell's trustees for the purpose of distributing her estate.
Competing claims were lodged by the residuary legatees under the settlement, and by the parties named in the four holograph writings; and the question to be determined was, whether these writings were to be regarded as valid testamentary writings or not
The residuary legatees maintained that these four papers were not valid testamentary writings, and founded on the following letter written by Miss Bell to Mr Thomson, writer, Dundee, who was agent in the management of the estates of Samuel Bell:—‘Miss Bell presents respectful compliments to Mr Thomson. She begs to acquaint him that she will be much disappointed if her late brother's matter is not completely settled by the term of Whitsunday, as she intends to make some alterations in her deed, and cannot do it until she knows what part of her brother's property falls to her share.—Dundee, 31st March 1862.’
The parties named in the four papers maintained that they were codicils or additions to Miss Bell's settlement, in virtue of which they were entitled to the sums therein mentioned as legacies.
A joint minute was adjusted, and probation renounced as to what were Miss Bell's testamentary writings.
The Lord Ordinary pronounced the following interlocutor:—‘Finds that the four writings, dated respectively 17th March 1854, 29th...
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