Lord Trayner —This is an application to have it declared that the settlement in question in this case was subscribed by the deceased and by the witnesses by whom it bears to be attested. The application proceeds upon section 39 of the Conveyancing Act of 1874, the terms of which are—[His Lordship read the section .] It appears from the proof that the petitioners have established what the section requires, viz., that the signatures are those of the deceased and of the witnesses. That being so, I think the inquiry, so far as section 39 is concerned, is exhausted. But it seems to me that the decided cases have gone beyond the limits of section 39, and have indicated that in proving the signature of the deceased it must also be proved quo animo it was adhibited. I think that is a reasonable requirement, and designed to meet the case, for instance, of the signature having been appended under misapprehension or by mistake. But any circumstances of that kind are out of this case. All the requirements of the decided cases and of section 39 have been satisfied.
The document in question was written by a law-agent, or an agent's clerk, in conformity with the special instructions of the deceased. No doubt the draft shows that there have been some alterations which are not authenticated, and the rule is that unauthenticated alterations must be disregarded. But here the alterations are merely clerical corrections by the writer of the draft, and are not alterations by the testator after the draft was delivered to him. The will is written continuously with the proper catchword at the foot of each page to carry it on to the next. It is further to be observed that the draft lay with Mr Inglis for four or five years in the condition in which it was sent to him, and that he then took it to the bank for the special purpose, which he fulfilled, of signing it before two witnesses. That was a deliberate act indicating adoption after careful and long consideration, and is a very important and material circumstance in the case. It is also material that this deed was kept by the deceased in the safe in which he kept
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On the whole, I am satisfied that the petitioners have established the draft as the final settlement of the deceased, and that it should be given effect to.
The Court granted the prayer of the petition.
Counsel for the Petitioner— Campbell, K.C.— Sandeman. Agent— William B. Bennie, S.S.C.
Counsel for the Respondents— Ure, K.C.— George Brown. Agents— Macpherson & Mackay, S.S.C.