Scottish Court of Session Decisions

Subject_1 TRUST.

Captain Mowat
v.
Jean Spence

1753, Jan. 23.
Case No. No. 14.

Click here to view a pdf copy of this documet : PDF Copy

Thomas Spence purchased an heritable debt of 400 merks on the estate of Dalvenan, with many annualrents, and took the right in name of William Crawfurd, 1st February 1735, and died in 1736, leaving three daughters, Agnes, Jean, and Sophia; and after his death, Agnes and Jean bought Sophia's share of the succession at L.250 sterling; and after Thomas's death, he being in possession of Dalvenan by another temporary right, a gift of liferent escheat, William Crawfurd uplifted the rents as factor for the daughters, and counted for them to them. There is now a ranking and sale of the estate, and Agnes having been married to Captain Mowat, and in the contract of marriage having made over that debt wholly to him, and she being dead; there arose a competition betwixt Captain Mowat claiming the whole debt in right of his wife, (and for instructing her right, produced a letter from William Crawfurd to Agnes, dated 19th November 1735, acknowledging that the right was in his person in trust for her behoof, when Thomas Spence was alive, and a conveyance by William Crawfurd in 1742, after Thomas Spence's death, to Gilbert Lautie, and a formal back-bond of trust by him to Agnes)—and Jean claiming the half as heir-portioner of her father, and joint purchaser of Sophia's share. Lord Minto, Ordinary, found that the right had been purchased with Thomas Spence's money, and that William Crawfurd had no sufficient authority to prefer Agnes, and therefore found that the two sisters should be ranked equally. But on a reclaiming-petition, we on 7th January altered, and found William Crawfurd's letter and Lautie's back-bond sufficient evidence of the trust for behoof of Agnes. But upon a reclaiming bill, alleging inter alia that Spence could not afford so large a provision, which would amount to L.600 or L.700 sterling to one daughter, while he had no remaining free gear either for his own support or his wife's liferent, or for the other two daughters; and far less would Agnes and Jean have purchased Sophia's share at L.250 sterling; therefore, (27th December) we remitted to an accountant to examine and report the state of his affairs at his death; and by that it appeared, that besides that debt, his free gear, deducting his debts, did not much exceed L.100 sterling; and therefore, as it was impossible that Agnes would have joined in purchasing Sophia's third share at L.250, had the debt been her own, we again altered, and found that the trust in Crawfurd's person was for the behoof of the father, and preferred the two parties equally; and this I mark to show how difficult it is, in consistence with justice, strictly to observe the act 1696. 23d January 1753, The Lords adhered.