Gordon's Executor v. Macqueen and Others [1907] ScotLR 44_279 (11 January 1907)

Gordon's Executor v. Macqueen and Others [1907] ScotLR 44_279 (11 January 1907)

There was no evidence that the 1852 will was made when the testatrix suffered from decay of memory or was one of the two wills revoked by the holograph writing. The holograph writing did not expressly or impliedly revoke the 1852 disposition, nor did it contain any testamentary disposition inconsistent with the earlier will. The onus of proving revocation was not discharged; therefore, the 1852 will regulates succession.

Citation
[1907] ScotLR 44_279
Parties
Executor Dative Qua Next of Kin (applicant): William Rose Gordon; Claimants (children of Alexander Gordon, Reclaimers): Mrs Mary Jane Gordon Macqueen and Others; Claimants (children of Mrs Alicia Gordon Bridges, Respondents): Mrs Mary Bridges Sherlock and William Francis Bridges; Claimant (guardian, Respondents): Harry Lyons Dümler (guardian of Georgina Bridges and John Gordon Bridges)
Jurisdiction
Scotland
Judgment Date
11 January 1907
Procedural Posture
Action of Multiplepoinding / Inner House, First Division, Court of Session, Appeal (reclaiming Motion)
Outcome
Interlocutor recalled; writing of 1865/1879 held not to revoke the 1852 testamentary disposition; remitted to Lord Ordinary to rank and prefer claimants accordingly.
Legal Topics
Revocation of Wills, Interpretation of Testamentary Documents, Intestacy, Trust Disposition and Settlement
Succession Wills and Probate Revocation of Wills Interpretation of Testamentary Documents Intestacy Trust Disposition and Settlement

Case Brief

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Parties

William Rose Gordon

Executor Dative Qua Next of Kin (applicant)

Mrs Mary Jane Gordon Macqueen and Others

Claimants (children of Alexander Gordon, Reclaimers)

Mrs Mary Bridges Sherlock and William Francis Bridges

Claimants (children of Mrs Alicia Gordon Bridges, Respondents)

Harry Lyons Dümler (guardian of Georgina Bridges and John Gordon Bridges)

Claimant (guardian, Respondents)

Procedural Posture

Action of Multiplepoinding / Inner House, First Division, Court of Session, Appeal (reclaiming Motion)

Legal Issues

  1. 1 Whether the holograph writing of 1865/1879 revoked the trust-disposition and settlement of 1852
  2. 2 Whether the estate should be distributed according to the 1852 will or by operation of law (intestacy)

Ratio Decidendi

There was no evidence that the 1852 will was made when the testatrix suffered from decay of memory or was one of the two wills revoked by the holograph writing. The holograph writing did not expressly or impliedly revoke the 1852 disposition, nor did it contain any testamentary disposition inconsistent with the earlier will. The onus of proving revocation was not discharged; therefore, the 1852 will regulates succession.

Court Disposition

Interlocutor recalled; writing of 1865/1879 held not to revoke the 1852 testamentary disposition; remitted to Lord Ordinary to rank and prefer claimants accordingly.

Orders

  • Rank and prefer claimants (children of Alexander Gordon) in terms of the 1852 disposition, subject to payment of £500 legacy to issue of Alicia Gordon Bridges.
  • All parties interested entitled to their expenses out of the trust estate.