v. Mags. of

24, 1891

properly levelled, made up, constructed, paved, and completed in such way and manner and with such materials as the Magistrates and Council may think fit, and the costs and expenses which may be incurred by them in connection therewith shall be charged as a debt against such owner or owners in default; all in terms of section 130 of the Edinburgh Municipal and Police Act 1879, and section 33 of the Edinburgh Municipal and Police (Amendment) Act 1891." The second notice had regard to the causewaying of Rossie Place. It called upon the appellant "to free the carriageway of said street from obstructions, and to properly level, make up, construct, causeway, pave, channel, and complete the same to the reasonable satisfaction of the Magistrates," and was otherwise framed in parallel terms to the notice already quoted.

It was against these notices that this appeal was taken.

The appellant maintained that he was not bound to comply with the requisition in the notices, in respect, inter alia-"(1) That he is not the owner of lands and heritages fronting or abutting on Rossie Place, and that he is not the owner of houses and heritages adjoining or fronting said street in the sense of the Acts under which said notices are issued.. and (3) that the said notices dated 21st October 1891 are not sufficiently specific in their terms." The respondents contradicted both these propositions.

By the 33rd section of the Edinburgh Municipal and Police (Amendment) Act 1891 it is provided—“Where in any private street or court, houses or permanent buildings have been erected on one-half or more of the ground fronting or abutting on the same, or where such ground has been otherwise than temporarily enclosed and laid out to at least the said extent, and where such street or court is not, together with the foot-pavements or footpaths thereof, made-up, constructed, causewayed, paved, and in a complete and efficient state of repair to the reasonable satisfaction of the magistrates and council, the magistrates and council may, if they think fit, by notice call upon the owners of the lands and heritages fronting or abutting on such street or court to free the same, and any footpavements or footpaths thereof, from obstructions, and to properly level, make up, construct, causeway, pave, channel, and complete the same to the reasonable satisfaction of the magistrates and council, within a time to be specified in such notice, and in case such notice is not complied with within the time so specified therein, the magistrates and council may themselves, at any time thereafter, cause any such street or court or part thereof, and any foot-pavements or footpaths of the same, to be freed from obstruction, and to be properly levelled, made up, constructed, causewayed, paved, and channelled, and completed in such way and manner and with such materials as the magistrates and council may think fit, and the costs and expenses which may be in

curred by them in connection therewith shall be recoverable as a debt from the owner or owners in default."

The

Argued for the appellant-(1) The appellant was simply the proprietor of a house and garden in Lady Menzies Place, with an entrance from that street. It was true a gable-wall of the house looked on to Rossie Place, but in order to "abut" on a street there must be an access to the street from the house or garden. Here there was none. It was also true that the appellant was a pro indiviso owner of the ground on which the house is built, but that was not on the level of the street, and so could not be said to "abut" on it. It was laid down by the Lord President in the case of the Magistrates of Leith v. Gibb, February 3, 1882, 9 R. 627, that for premises to abut on a street there must be undoubted right of access to the street. (2) There was not in the notices sufficient specification of the work to be done. right of appeal was given for the first time by sec. 62 of the Act of 1891. Sec. 33 of that Act allowed the householder to do the work himself to the "reasonable satisfaction of the Magistrates," and failing his doing so, the Magistrates might do it as expensively as they thought fit, and the householder would have to pay. It was therefore necessary for the householder to be told definitely in the notice in what mode he must execute the work to obtain the reasonable "satisfaction of the Magistrates." It was true the old notice directed him to call on the City Surveyor to ascertain the way to do the work, but since the right of appeal was only given by the Act of 1891, it was no guidance to him to look at what was said in notices issued before the right of appeal was given, and in any case it would be most unreasonable to expect every householder to go and consult the City Surveyor. On the other hand, if the householder was to do the work without finding out the necessary details, the Magistrates might reject his work and make him do it over again.

Argued for the respondents (1) The appellant was owner of lands "abutting" on Rossie Place. The case of the Magistrates of Leith was a special one, and differentiated from this by the fact that a strip of ground belonging to another person was interposed between the property in question and the street which was to be paved. The word "access," as used by the Lord President in that case, did not mean "entry," but merely that there must be no intervening property between the subjects and the street. Here there was no such intervening property either as to the house or the garden. (2) The notice was sufficiently specific in its terms, for the statute did not require the Magistrates to state how the work was to be done, but merely that it was to be done to their satisfaction. The usual custom was for the householder to apply for instructions to the City Surveyor, and that the appellant was directed to do in the notices of 28th January.

At advising

LORD PRESIDENT-There are two questions upon which our judgment is askedFirst, whether the appellant is proprietor of lands abutting on the street in question? and secondly, whether the notices served upon him by the Magistrates in October 1891 was sufficient, in the sense of giving him sufficient specific notice of what he was required to do?

As to the first of these questions, I have not much doubt that the appellant is proprietor of lands abutting on the street. According to every sense of the word, the garden of which the appellant is proprietor abuts on the street. Also, being pro indiviso proprietor of the area of the ground upon which the house is built, he is again, though his interest is a limited one, "proprietor of ground abutting on the street." The case stated for the Magistrates in their answers is quite sufficient on this point. I am therefore against the appellant on the first of the two questions.

With regard to the second, however, the case is very different. The Magistrates appear to me to have acted upon the theory that all that is required of them is to serve a notice which amounts only to a reminder to the ratepayers of the terms of the Act of Parliament. The notice tells him "to free the footpaths of said street from obstruction, and to properly level, make up, construct, pave, and complete the same to the reasonable satisfaction of the Magistrates," but as to the way and manner in which the work is to be done the notice is absolutely silent. We must consider whether, having regard to the fact that there is an alternative procedure provided for by the section, such a notice is an adequate compliance with the requirement of the statute. The scheme of the statute is that the householder should be apprised first of what he is himself required to do under it, and secondly, that failing his doing it, the Magistrates will do the work themselves. I take it, accordingly, that the proprietor may expect to learn specifically what is required of him that he may then consider whether to adopt the first course suggested by the statute, viz., that of doing the work himself, or the second, that of allowing the Magistrates to do the work and charge it to him. There may be circumstances in particular cases which may render it more convenient to individuals to do the work at their own hand. Whether they adopt that course or not may depend on the kind of work to be done, and it is only when the proprietor has due notice of the kind of work which is required of him that he can take advantage of the statutory provision.

It has been said by the respondents that the section may be worked out in this way, that a notice in general terms, such as we have here, should be given, and that a conference should take place between the householder and the City Surveyor as to the specific mode in which the work is to be executed, and that if they fail to adjust their views satisfactorily-the statutory period for appeal running all the time from the date of the notice-then the

householder may come to the Court and found on these extra statutory negotia tions. I cannot see that a citizen should have imposed upon him the duty of going and consulting the City Surveyor, when the simple plan is for the Magistrates to tell him what is required of him. It is too much to make a citizen go to the City Chambers and see the City Engineer in order to find out whether he will do the work himself or not. It is not, I think, too heavy a burden to lay on the Magistrates to insist that they should state in the notice with sufficient fulness the work that has to be done. There have been cases before us where such notices were issued. I am clearly of opinion that the notice was bad, and that the appeal should be sustained on that ground.

LORD M'LAREN-I am of the same opinion on both points. In the first place, I think that the statute can only be construed to include all the properties into which a tene ment is divided. It would be most inconvenient were the proprietors' duty to depend upon a matter of conveniency, whether the proprietor of a flat had also a pro indiviso interest in the basement or not. The obligation imposed by the statute applies to all who have a substantial herit able interest in any stratum of a building overlooking a street, and not separated from it by any other intervening property.

Secondly, it is necessary if any appeal can be brought that the notice must specify generally the kind of pavement which the Magistrates desire. There may be indivi dual circumstances which make it very important for the ratepayer to decide which course to pursue. Very often a builder or contractor in house property would prefer to do the work himself, and he must know how the Magistrates wish it to be done. It would be most inconvenient if all the proprietors in a long street were to come and wrangle with the City Surveyor as to the way in which the street should be paved. They would be far more likely to agree to a proposition sent them in the notice by the Magistrates. I am of opinion therefore that the notice is insufficient, because it does not specify the kind of pavement which the Magistrates require.

LORD KINNEAR-I am of the same opinion, and have nothing to add.

LORD ADAM was absent.

The Court sustained the appeal, found that the notices dated 21st October 1891 were not sufficiently specific in their terms, and that the appellant was not bound to carry into effect the work under said notices, and decerned.

Counsel for Appellant-Sol.-Gen. Graham Murray, Q.C.-Craigie. Agent - Robert Stewart, S.S.C.

son

Counsel for Respondents-Comrie Thom- Boyd. Agent-W. White Millar,

S.S.C.

Testament-General Trust-Disposition and Settlement-Codicils-Principal Deed Rewritten in Similar Terms and Reexecuted-Revocation.

A testator executed a general trustdisposition and settlement upon 8th March, and two codicils upon 9th March and 14th March respectively. A doubt having arisen as to the validity of the execution of the principal deed, another deed was prepared in virtually the same terms and executed upon 9th April.

Held that the two codicils were not thereby revoked.

The late Miss Jane Dalglish, of Dunrowan, in Dumbartonshire, died on 27th April 1890, aged eighty-three years. She left personal estate amounting to about £13,000.

In March 1890 Mr John Roberts, S.S.C., Miss Dalglish's law-agent, prepared a trustdisposition and settlement for execution by her, in terms of instructions which Miss Dalglish had previously given to him. On the 8th of March Mr Roberts waited on her to have the trust-disposition and settlement signed, and by her instructions appended thereto a writing leaving legacies to two servants. The deed was then read over to Miss Dalglish, she approved thereof, and desired to sign the same. From bodily weakness, however, she was unable to subscribe the same satisfactorily, and after several ineffectual attempts the deed was again read over to her in presence of two witnesses, and was, at her request, subscribed by Mr Roberts notarially on her behalf. Mr Roberts explained to Miss Dalglish that it might be better, if she got stronger, to have the deed reexecuted and signed by herself with her own signature, and arranged that in the event of her recovery she would send for

him for that purpose. Accordingly the

deed was re-extended and re-executed, with the differences that the deed as re-extended contained in its body the legacies to servants contained in the writing appended to the deed as executed on the 8th March 1890, and that it was executed by the testatrix herself in common form. In all other respects the two deeds were in identical terms. On 9th April 1890 Mr Roberts was telegraphed for, and went to Helensburgh, and the re-extended deed was read over and subscribed by Miss Dalglish.

Both deeds conveyed her whole estate to the trustees for the purposes of the trust. By each of these deeds, dated 8th March and 9th April respectively, a legacy of £600 was left to Miss Agnes Margaret Crum, daughter of John Crum, Elmpark, Helensburgh.

After 8th March 1890 Miss Dalglish ex

pressed a strong desire to make an additional provision for Agnes Margaret Crum, and to regulate the distribution of her trinkets and jewellery. Accordingly, on 9th March 1890, being a Sunday, when Mr Roberts could not be sent for, Miss Dalglish had a codicil prepared and signed notarially for her by Mr Miller, writer in Glasgow and notary public, who resided in Helensburgh. By said codicil Miss Dalglish bequeathed a variety of specific articles to the persons mentioned in said codicil, including Agnes Margaret Crum, and subject to the foregoing alterations and additions she confirmed the trust-disposition and settlement of 8th March 1890.

On the 14th March 1890 Miss Dalglish again sent for Mr Miller, and had a second codicil prepared and signed for her in like manner by him. Miss Dalglish thereby, "in addition to the provisions in my trust-disposition and settlement in favour of the said Agnes Margaret Crum," made a provision of £500 in her favour, as set forth in said codicil.

A special case was presented to the Court of Session by the trustees nominated by Miss Dalglish's trust-disposition and settlement of the first part; Miss Agnes Margaret Crum with advice and concurrence of her father-she being a minor-of the second part; and the residuary legatees under the said trust-disposition and settlement of the third part, to have the following questions determined by the Court viz.

1. Is Agnes Margaret Crum entitled to the legacy or provision of £500 bequeathed to her by the codicil executed on 14th March 1890, in addition to the legacy of £600 bequeathed to her under the said trust-dispositions and settlements?" 3. Is the codicil of 9th March 1890, in so far as it disposes of the jewels, trinkets, and other specific articles therein set forth, entitled to receive effect?"

Argued for the second party-(1) There was no express revocation of the codicils in the subsequent general trust-disposition, and revocation was not to be implied. The whole of a person's testamentary writings were to be read together as one setalement if that could be done, as here, without doing violence to any of them-Forlong v. Taylor's Executors, April 3, 1838, 3 Sh. & M L. 177; Grant v. Stoddart (Whole Court) February 27, 1849, 11 D. 860, espec Lord Moncreiff's opinion, 872, dissenting, quoted with approval by House of Lords, which reversed the interlocutor-1 Macq. 163; Sibbald's Trustees v. Greig, &c., January 13, 1871, 9 Macph. 399. (2) There was here simply re-execution or republication of a prior settlement, the validity of whose execution seems to have caused the law-agent some anxiety. No alteration whatever was made, no revocation of intervening codicils was intended. The case fell to be decided upon the principles laid down in Wade v. Nazer, 1848, 1 Robertson's Eccles. Cases, 627, approved of by Justice Gray in Green v. Tribe, 1878, L.R., 9 C.D. 231; see also the case of Rawlings, 1879, 41 L.T. 559 and 48 L.J. Prob. Div. 64. In Wade's case a clause of revocation

of prior settlements contained in the will re-executed was held not to revoke codicils executed subsequently to the will and before the re-execution. Further, ratification or republication drew back to the date of the original execution, and the codicils being subsequent to that date were effectual. (3) Special provisions, bequests, or destinations were not revoked by a subsequent general disposition-Thomson v. Lyell, Nov. 18, 1836, 15 S. 32; Kenmore's Trustees, May 18, 1869, 7 Macph. 771; Glendonwyn v. Gordon, July 20, 1870, 8 Macph. 1075, and May 19, 1873, 11 Macph. (H.L.) 33; Walker's Executor v. Walker, June 19 1878, 5 R. 965. (4) No doubt the codicil appended to the first will was incorporated into the body of the second one, and the two codicils in question were not. Probably this was merely because Mr Roberts did not know of their existence as they had been drawn by another agent.

Argued for the third parties—(1) The deed of 9th April was a general settlement of Miss Dalglish's whole estate and operated as a revocation of the prior codicils. The codicil appended to the deed of 8th March was incorporated, but the two codicils in question were ignored. (2) Assuming that the English law as to re-execution was as stated by the second parties, the facts did not amount to re-execution. Here a new will had been made and executed. (3) The law as to special provisions referred particularly to special destinations of heritable property and not to bequests of sums of money. Kenmore's case was not, if carefully examined, really an exception. It dealt with the title to bank stock. The case of Campbell v. Campbell, July 8, 1880, 7 R. (H.L.) 100, following upon Thoms v. Thoms, March 30, 1868, 6 Macph. 704, had greatly modified the law laid down in Glendonwyn; see also Leitch v. Leitch's Trustees, February 17, 1829, 3 W. & S. 366.

At advising

LORD JUSTICE - CLERK - This case is a somewhat peculiar one. The late Miss Dalglish executed a trust-disposition and settlement on the 8th of March 1890. She herself endeavoured to execute it with her own hand, but owing to bodily weakness the exertion was too great for her, and by the time it came to appending the last signature or two they were practically, as we see from the deed itself, illegible, and so unsatisfactory as signatures that Mr Roberts, the gentleman who had drawn up the deed by her instructions, thought it would not be satisfactory to leave it in that state, and accordingly it was executed notarially, he signing as notary. There is this peculiarity about the deed, that it has a codicil appended to it. Apparently Miss Dalglish, on Mr Roberts coming with the document for signature, desired to put in one or two other legacies, with a view to having the whole matter done at once. He also, as we are informed by the special case, expressed his opinion that it would be desirable that if her strength should sufficiently rally at

some future day the deed should be reexecuted, and accordingly he drew out a deed in exactly the same terms as the former deed and codicil, the only difference being that as on this occasion he had his full instructions he omitted the codicil and inserted the two legacies which had been contained in the codicil of 8th March in the re-extended deed. The intention was to make more sure what had been done upon the 8th of March, and there was no alteration whatever on the deed except in that matter of form, that what formerly had been added as a codicil was now placed in the body of the deed itself. A few days after the 8th of March, and before Mr Roberts had the deed executed by Miss Dalglish herself, it occurred to her that she desired to make one or two more additions to the provisions of her will, and we are told in the case that she was not able to get Mr Roberts to come, but that Mr Miller, a writer in Glasgow, was sent for on these two occasions, one being the 9th and the other the 14th of March, when two codicils were drawn out, one making an additional provision in favour of Agnes Margaret Crum, by which £500 would be set apart for her education, the balance to go to her on her attaining the age of twenty-one years, or in the event of her dying before reaching majority, the balance to fall back into the residue. On the 9th of April, Miss Dalglish having sufficiently recovered to be able to execute the deed herself, Mr Roberts was telegraphed for, and he came with the deed extended, as I have already mentioned, and Miss Dalglish was able on that occasion to sign it efficiently herself. It appears that Mr Roberts knew nothing about the two codicils which had been signed notarially for Miss Dalglish by Mr Miller, and accordingly it was quite to be expected that he would not take any notice of these provisions at all. And the question which is now before us is this, whether the deed which is now the will of Miss Dalglish, being dated the 9th of April, it is to be held to cancel the codicils of 9th and 14th March.

It

Now, in regard to that question it is necessary to consider very carefully what really was done. The special case puts it plainly before us that it was the re-extending and the re-execution of the deed of March. was to come in the place of the deed of March; it was a re-execution of the deed of March, and of course it could only bear the date on which it was signed, which certainly was subsequent to the codicil, but being a mere re-extending and re-execution of that deed, I am of opinion, after considering the authorities, that we are in a position to hold that the re-execution of the deed did not cancel the codicils-that the expression of Miss Dalglish's will as at 8th March was repeated by her trust-disposition and settlement of 9th April, but that that was a mere repetition, and had no effect in cancelling what she had done in codicils to that which she was repeating.

The question might have been a very difficult one to decide had it not been that we have some authority upon the

matter already, and I would only mention the case of Wade, referred to in the course of the argument, which was a case somewhat similar. In that case the testator had drawn up his will with his own hand and signed it, and he had afterwards granted certain codicils, but he was advised by a solicitor that it would be of importance that he should have certain words of style in the declaration of his will, and accordingly after the granting of the codicils he re-executed the will of a subsequent date to the granting of the codicils. Now, it was held in that case, and held quite distinctly, that the mere re-execution or re-attestation of the will which had been previously drawn out and signed had not the effect of wiping out the subsequent codicils; that it was quite consistent with the intention and meaning of the testator, and indeed quite inconsistent with any other view; that he meant that that which he had done by the codicils should remain. And therefore I have come to the conclusion that we should answer the first question in the affirmative. Then as regards the codicil as to the specific articles, that is practically answered by what I have said as to the answer to the first question, that that part of the codicil is entitled to receive effect. Accordingly the first question must be answered in the affirmative, and the third in the affirmative.

LORD YOUNG-I am of the same opinion' and I do not know that I can usefully add anything to what your Lordship has already said. What appeared to myself, and I think to all of us at first-possibly throughout-in the case was, whether we could, or how we should, reach a judicial view as to the state of the facts, for I do not think any of us for a moment doubted that if we were judicially satisfied by competent evidence or on satisfactory grounds that the deed of 9th April was simply a re-attestation or ratification of the deed of 8th March, it would not have any effect in recalling the codicils in question. The difficulty was in reaching that conclusion, that it was only a re-attestation or ratification of the first executed deed, because of a doubt as to the formality of its execution. Having overcome that difficulty, which I agree with your Lordship in thinking we satisfactorily and quite safely do upon the language of the case as stated to us by the parties, I have no hesitation whatever in acting upon the principle as equally valid and satisfactory in the law of Scotland, upon which the English Court proceeded in the case of Wade and some other cases that were referred to, and which was very distinctly expressed by Lord Hannan when he was President of the Probate Court, that a mere re-attestation of a deed because of some doubt cast upon the validity of the original attestation will have no operation whatever in recalling a codicil although it is of a date subsequent to the codicil, and so makes the deed which is thereby re-attested of a date subsequent to the codicil. I do not think it is an accurate use of language to speak of the

re-executed deed as a new will or another will. The will was not changed; the will remained the same, although it might be written out upon and evidenced by another paper. Now, I think it is quite clear that the will, of which the re-executed deed of 9th April is the evidence before us, is the very will which is expressed in the deed of 8th March, and that the whole purpose was a re-attestation in the way which occurred, I think very naturally and properly, to the conveyancer, of the same will written upon the paper with the date of 8th March. And that being so, I cannot doubt that we should act unjustifiably and unwarrantably if we imputed to the testator the intention when she yielded to and followed the advice of her man of business on this matter, of recalling these codicils, and if she had no such intention, as plainly upon these facts she had not, we should be doing manifest injustice by holding that they were recalled.

LORD RUTHERFURD CLARK and LORD TRAYNER Concurred.

The Court answered the first and third questions in the affirmative.

Counsel for the First and Third PartiesLord Advocate Sir Charles Pearson, Q.C.Kirkpatrick - Dickson. Agents Irons,

Roberts, & Company, S.S.C.

Counsel for the Second Party D.-F. Balfour, Q.C.-Dundas. Agents-Bell & Bannerman, W.S.

Wednesday, November 25.

FIRST DIVISION.

[Lord Wellwood, Ordinary. YULE v. M'MEEKEN AND ANOTHER. Diligence-Curator Bonis-Competency of Charge at Instance of Party Under Curatory.

Where a charge was given for payment to a curator bonis of a sum of money due to his ward, held that it was not a good objection to the charge that it proceeded at the instance of the ward.

On 26th April 1888 Charles Yule, accountant, Glasgow, in consideration of a sum of £500 which he had received from Ottho Adrian Clayton Alexander, curator bonis to George Russell Alexander, a person of unsound mind, granted a bond and assignation in security over certain heritable subjects, binding himself to repay the sum borrowed "to the said George Russell Alexander, his executors and assignees whomsoever.

On 23d January 1890 James M'Meeken, accountant, Glasgow, was appointed curator bonis to George Russell Alexander in place of Ottho Adrian Clayton Alexander.

On 10th October 1890 George M'Meeken, having recorded the bond and assignation above mentioned, charged Charles Yule to