Scarff v Scarff
| Jurisdiction | Ireland |
| Judgment Date | 18 May 1927 |
| Date | 18 May 1927 |
| Docket Number | (1925. No. 11,837.) |
| Court | Supreme Court (Irish Free State) |
Supreme Court.
Will - Execution - No attestation clause - Witnesses not available or
identified - Presumption of due execution.
Action.
The plaintiff, Margaret Scarff, widow of William Scarff, deceased, brought the action to have the last will, dated September 4th, 1924, of the deceased established in solemn form of law, and for a grant of letters of administration of the personal estate and effects of the deceased with the will annexed. The defendant, William Frederick Scarff, was a son of the deceased by his first wife, and his heir-at-law; and his main defence was that the will was not duly executed according to the provisions of 1 Vict. c. 26.
The deceased had been a commercial traveller for forty years, and in September, 1924, he made his last journey in that capacity. On September 4th, 1924, he wrote from Monasterevan, a town on the Great Southern and Western Railway, to his employers, saying that any communications for him were to be sent to his home address in Dublin. Early in that year he got into bad health, and on October 24th, 1924, he retired from business. On November 29th, 1924, he died. In the last week of October or first week of November he spoke to his wife about going to his solicitors to make a will; also about a fortnight before his death, and again two days before his death, he spoke to her about making a will. After his death the defendant applied for a grant of administration, and subsequently the plaintiff gave instructions to her solicitors to take out a grant.
Among the papers of the deceased the plaintiff found the following document in a packet of one of his order books:—
"Mgt. Scarff, my wife, gets house and furniture at my death.
Wm. H. Scarff.
P. Cluskey.
Septr. 21st, 1909."
She took this document to her solicitors, and they told her it could not be proved, as it was not a properly witnessed will.
On March 16th, 1925, the plaintiff discovered in an attaché case belonging to the deceased the document now being propounded as a will. It was in the following terms:—
"G.S.W. Rail.
Wm. H. Scarff wills all to his wife at his death, and she will see to Meta's pension.
Sept. 4, 1924."
The writing was on the back of one of the order forms of the firm by which the deceased was employed. The parcel in which the document was found had a rubber strap around it. This parcel comprised two pieces of cardboard on top, some blank order forms, a piece of blotting-paper, and underneath the blotting-paper the will and other order forms.
According to all the witnesses acquainted with the handwriting of the deceased, including the defendant, the entire document, with the exception of the two names, "F. Kinch"and "C. Jeffares," was in the handwriting of the deceased. The handwriting in the names, "F. Kinch" and "C. Jeffares,"indicated two different persons, as the signatures were apparently not in the handwriting of the same person.
Efforts made by the plaintiff to trace or discover F. Kinch and C. Jeffares proved fruitless. The following advertisement was inserted in various newspapers, including those circulating mainly in the district in which the deceased usually travelled:—
"Important Notice.
William H. Scarff, deceased, late of Eglinton House, Cabra, Dublin.
If Mr. F. Kinch and Mr. C. Jeffares, who witnessed the will of the deceased, will favour us with a call, or, if more convenient, communicate with us by letter, we shall be much obliged. The will is dated 4th September, 1924."
No replies were received. Inquiries were also made from the Commercial Travellers' Association, and the secretary of that body replied that the list of members did not contain the names of F. Kinch and C. Jeffares. Other inquiries were also made, without eliciting any information.
The defendant, in his evidence, stated that in the course of a conversation on September 18th, 1924, his father informed him that he was going to make his will; that he had no will made. On cross-examination, the defendant said that the document dated September 4th, 1924, was in his father's handwriting, but he doubted whether it was a will, because his father had told him afterwards that he had no will made. He did not think his father thought that that document was a will.
At the conclusion of the evidence an application for a direction was made on behalf of the defendant on the ground that there was no evidence even of the existence of "F. Kinch" and"C. Jeffares," and there was nothing to create a presumption in favour of the document being duly executed as a will; because the only thing proved in relation to it was that it was in the handwriting of the deceased, and signed by him. The application was refused.
The defendant appealed to the Supreme Court (1) for an order that the judgment of O'Byrne J. be set aside, and that in lieu thereof a new trial might be ordered; or, in the alternative, that judgment be entered pronouncing against the force and validity of the will.
Some months after the death of a commercial traveller, William H. Scarff, there was found among his papers a blank order form, belonging to his employers, on the back of which was written:—
"G.S.W. Rail.
Wm. H. Scarff wills all to his wife at his death, and she will see to Meta's pension.
Sept. 4, 1924."
There was evidence that on the 2nd, 3rd, and 4th September, 1924, Scarff was travelling from different towns on the G. S. & W. Railway on his employers' business. The entire of the document, with the exception of the two names "F. Kinch" and "C. Jeffares," was admittedly in his handwriting, and these two names were in different hand writings. The document was discovered by his widow in a parcel in his attaché case underneath a piece of blotting-paper. The reverses of the heading of the document and of the three signatures were decipherable upon the blotting-paper, upon an examination of it in the Supreme Court. The whole document, including the signatures, appeared to have been written with the same, and that a peculiar, ink. The two signatories, F. Kinch and C. Jeffares, could not be traced, nor could their identity be established, although inquiries were made and advertisements were issued with a view to discovering them.
Held by the Supreme Court, affirming O'Byrne J., that the document be admitted to probate, as there was sufficient circumstantial evidence to justify the Court in drawing the conclusions that Scarff either signed or acknowledged his signature in the presence of the other two persons whose names were annexed, and that each of them signed in his presence.
O'Byrne J. :—
In this case I have to decide three issues. First, whether this document was duly executed in accordance with the statute; secondly, whether the testator was at the date of that document of sound mind, memory, and understanding; and, thirdly, whether he knew and approved of its contents.
Now, there is no dispute in this case as to the question of Mr. Scarff's capacity in September, 1924, when this document purports to have been made. He was at that time going around the country, carrying out his ordinary duties, on behalf of Messrs. Hogg & Company, and I have abundant evidence that at that time, and...
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