under my hand;" and he left another improbative letter containing additional legacies: Were the legacies in both or either of the letters effectual? State the rule. The legacies in the former letter are effectual, but those in the latter are null; the rule being, that informal writings properly referred to in probative deeds, and then in existence, are held to be imported into the probative deed by reference;' but when the 1 Inglis, 13th Oct. 1831, 5 W. & S. 785, H. of L.(0) executed a mutual settlement, duly authenticated, whereby they directed their trustees, after payment of all charges and expenses, "and of all legacies or payments which we may direct to be made out of our respective shares by any letter or other writing under our respective hands, whether formal or informal," to dispose of the residue "in such way and manner as the survivor of us may direct by any such letter or writing." A letter holograph of one of the sisters, and signed by both, but not tested, was sustained as effectual to constitute a bequest; Wilson's Trs., 13th Dec. 1861, 24 D. 163. A testatrix by a formal trust-deed directed her trustees to pay all "legacies or bequests which by a writing or writings under my hand, hereunto annexed, or on a paper or papers apart, I shall make or settle." She left a separate document, neither holograph nor tested, headed "Codicil to my Will," and commencing, August, 1860. I wish to bequeath the following legacies," and then followed three pages of legacies to different persons, after which came these words, which were holograph: "This is written at my dictation," followed by her signature and date. The first and second pages were unsigned, but there were holograph interpolations and alterations on the first page. The document was sustained as effectual; Young's Trs., 3rd Nov. 1864, 3 M'P. 10. See also Rankine, 7th Feb. 1849, 11 D. 543; and Preston's Trs., 15th July, 1856, 18 D. 1246. The principle now established seems to be that, if a party convey his property to trustees by a probative trust-deed, he may in that deed declare what form of writing shall be sufficient as an expression of his instructions; in short, that he may make the law in this respect for himself; and all that is required is that such writings, if of earlier date, should be identified as those referred to in the deed, and if of later date, as those intended in it; Dickson Evid. p. 495. See also Crosbie, 2nd June, 1865, 3 M'P. 870. In this case it was also held that the deed, having been executed in duplicate, and one copy found in the testatrix's repositories mutilated, but there being no evidence that the mutilation was by her, the duplicate copy in the hands of her agent was valid. In a recent case, three out of four holograph writings, admitted to be genuine and probative by a party who had previously executed a trust-deed and settlement containing a reserved power to alter, were held not effectual as testamentary writings; but the judgment proceeded on grounds not affecting the principle here stated; Lowson, 20th March, 1866, 4 M'P. 631. (0) Reversing judgment, 27th May, 1828, 6 S. 864. writing referred to is to be prepared at some future date, it must be holograph, or attested in terms of the statutes.'(p) 50. Would a foreign conveyance regarding moveables deficient in the solemnities required by the lex loci contractus, in respect, for instance, that it is unsealed, be sustained in this country, where such solemnities are not required? Such a deed would not be sustained; for in order that a foreign deed may receive effect in this country, it is an implied condition that it be valid according to the law of the country where it was made. But deeds which are intended to take effect in this country, and are executed according to Scotch law, will be effectual here though informal by the lex loci contractus.(r) [See as to wills, addition to Ans. 40.] 51. Is a foreign will, which is formal by the lex domicilii testatoris, effectual as a bequest of heritable subjects in Scotland? 4 No; because Scottish heritage can be transmitted only in the form of a de presenti conveyance. [But see following Answer.] But where heritage in Scotland is conveyed by a formal disposition executed according to the law of Scotland, and referring to a foreign will made, or to be made, such a disposition and will may be read together as an effectual settlement."(s) 1 See Ross Lead. Cases, Land Rights, i. 417 et seq. * Story's Confl., § 266 a. 3 Taylor, 16th July, 1847, 9 D. 1504; per Lord Fullerton. (p) See note (n) supra to Ques. 46. 4 Ersk. 3, 2, 41. 5 Cameron, 19th May, 1831, 9 S. 601; aff. 7 W. & S. 106. (r) The case of Taylor here cited was a transfer of claims under an obligation, not contracted, but alleged to be due in Scotland. The transfer, which by the law of England, where it had been executed, was invalid, was founded on as a title to sue, for which purpose it was held ineffectual, because the right to sue could arise only through a right to the claims, which had not been thereby acquired. The opinion expressed by Lord Fullerton was very general, and made no special reference to Scotland. (8) The legal effect of such a combined trust-deed is a question to be decided by the law of Scotland. See Richmond's Trs., 25th Nov. 1864, 3 M'P. 95, where it was held that a Scotch trust conveyance of heritage and subsequent Irish testament were to be read together. [52. What alterations on the law in regard to mortis causa settlements of land were made by the Consolidation Act, 1868? They are shortly-(1.) That land may be settled not only by de presenti conveyances but by testamentary or mortis causa deeds or writings executed in the manner required or permitted by the law of Scotland in the case of testamentary writings. (2.) That no such deed or writing granted by any person alive at the commencement of the Act, or granted by any person after the commencement of the Act, shall be considered invalid on the ground that the granter has not used the word "dispone" or other words importing a conveyance de presenti. [It will be kept in view that by section 27 of the Conveyancing Act, 1874, dispone " is no longer a vox signata in inter vivos deeds relating to land.] (3.) That where such deed or writing shall contain, with reference to such lands, words sufficient to transfer moveables, such deed or writing if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be held to be a general disposition of such lands within the meaning of the Act, and shall confer on the granter right to make up a title thereto.] 53. When a foreign deed, duly executed according to the law of the country where it is made, but informal by Scotch law, contains a conveyance of land in Scotland, or an obligation to convey such land, is it valid to any effect? An obligation to convey land, if formal by the lex loci contractus, may be enforced by action in this country against the granter and his heirs, because it is a personal obligation ad factum præstandum. But a foreign conveyance of heritage has been held not only null as a conveyance, but insufficient even to found an action against the granter to oblige him to grant a formal disposition. Lord Kames, however, distinguishing betwixt an onerous disposition and a gratuitous conveyance mortis causa, maintains that, on equitable grounds, the former ought to be sustained as a ground of action, if formal by the lex loci contractus, 2 Dalkeith, M. 4464. 1 Ersk. 3, 2, 40. because it is the counterpart of the grantee's implemented obligation to pay the price.1(t) [See Ans. 52, and addition to Ans. 40.] 54. May a disposition of Scotch heritage be revoked by an English will? Yes; the principle being, that any declaration of will is sufficient to revoke, and a foreign deed properly executed affords sufficient evidence of such will or intention. (u) [See Thomas, 7 MP. 114.] 55. Would a deed, executed in England according to the formalities required there, be received as probative in this country; or must its genuineness be proved by the attesting witnesses according to the English rule? State the reason. Such a deed will not be received as probative in Scotland; 1 Kames' Equity, 551; 1 Ross Lead. Ca. 118. 2 Leith's Trs., 6th June, 1848, 10 D. 1137, and 1 Ross L. C. 691. (t) See the opinions of the consulted judges in Purvis, 23rd March, 1861, 23 D. 812, where Lord President M'Neill, Lords Ivory, Curriebill, Deas, Neaves, Ardmillan, Mackenzie, and Jerviswoode stated as (p. 826) "the clear rule of law that no writing can avail as a conveyance or disposition of Scotch heritage that is not framed, both in point of style and in point of formality, according to the peculiar law and practice of Scotland." The Lord Justice-Clerk (Inglis) also stated the law to be that (p. 831) "All instruments (without distinction, except in the case of conveyance of land) executed abroad according to the solemnities of the place of execution must receive effect in Scotland exactly in the same way as if they were executed within Scotland according to the solemnities of the Act 1681." See also Campbell, 24 D. 1321. (u) In the case of Leith's Trs., referred to, a majority of the whole Court held that a disposition of Scotch heritage may be so revoked; and in Purvis, supra, a similar opinion was given by the whole Court (diss. Lord Kinloch); but the point has not been actually decided, a majority of the judges having held, in Leith's Trs., that a revocation of "all former wills, codicils, and testamentary dispositions" was not intended to revoke, and did not revoke, the Scotch disposition of heritage; and in Purvis matters were not in a condition for applying the principle, which however may probably be held as settled. An important distinction was also referred to in the opinion of the Lord President and other judges in Purvis-viz., that if "the writings could only be held to infer an implied revocation, by importing a new and different disposition of the subjects, we think they would be ineffectual for that purpose so far as heritage is concerned," if "they are not so executed as to form a valid disposition of heritage." because the English solemnities of execution are not intended to afford full proof of authenticity, and therefore to admit the deed without corroborative evidence would be to give it greater effect in Scotland than it would receive in the English Courts.1 [The alterations in the requisites of probative writs by section 38 of the Conveyancing Act, 1874, will be kept in view.] III. DELIVERY OF DEEDS. 56. On what principle is a deed ineffectual without delivery? The principle on which delivery is required to give efficacy to a deed is, that it being in the power of the granter until delivered, it is presumed that he has not finally resolved to be bound by it. The rule is also designed for protecting creditors against fraudulent latent deeds granted by their debtors.3 57. What classes of deeds do not require delivery, and for what reasons? (1.) Deeds which contain a clause dispensing with delivery; because they sufficiently mark the final intention of the granter.* 1 Dickson Evid. i. 533 (§ 1038 et seq.) (x) 2 Ersk. 3, 2, 43; Dickson Evid. i. 483 (§ 934). 3 Dishingtoune, 1 B. Sup. 259; Simpson, M. 11570. 4 Ersk. 3, 2, 44. (x) Mr. Skelton, in his Notes to the passage of Mr. Dickson's work here referred to, says, "The passage in the text seems opposed to the settled rule that a written contract, executed according to the forms required by the lex loci contractus, will be received as well as executed in the courts of other countries." In an old case, where an action was brought on an English double bond, and the defender denied the subscription, and pleaded that the bond was not probative unless proved by the witnesses, the Court found this impracticable at this distance, and repelled the plea; Chatto, M. 4456 and 4447. The rule may perhaps be stated thus:-Where there is a question as to the due authentication or formality of a foreign deed, the Court will take the opinion of lawyers of the country where the deed was made. See Hopetoun's Trs., 6th March, 1856, 18 D. 739, where queries were submitted to English counsel regarding the validity of a decree-arbitral issued in England; and Purvis, supra, where it was found "that by the law of Scotland, in which country the testator died domiciled, the succession to his moveable property will depend upon the formality, according to the law of the country in which they were executed, of the testamentary writings executed by the testator in the Netherlands, India, as constituting a last will and testament of moveable property," and proper steps appointed |