Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

The Executors of Mrs Mary Stewart
v.
M'Arthur Stewart of Ascog

Date: 8 July 1777

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It has been found, by several late decisions of the Court, that trusts may be inferred from circumstances, and this notwithstanding of the Act 1696. The decisions have not gone the length that a trust can be proved by parole evidence alone; but parole evidence will be received in part, and, joined to written evidence and documents, will make out a trust effectually. A case of this kind was decided between Mr M'Arthur Stewart of Ascog and the executors of Mrs Mary Stewart, sister of the late Blackbarony. For Chief Baron Montgomery, a creditor on the tailyied estate of Blackbarony, having received payment of his debt, he conveyed it to Mrs Stewart, and it stood in Mrs Stewart’s person at the time of her death; but, from certain facts and circumstances, both from writing and parole evidence, it truly appeared to be vested in her person in trust for the late Blackbarony, who, it would appear, intended to keep it up as a debt due to his heir out of the tailyied estate of Blackbarony. And the Lord Gardenstone having, 6th February 1777, found “that there was sufficient legal evidence from the writs produced, the parole evidence, and other circumstances, that this was truly a trust in the person of the sister;” the Lords, this day, upon advising petition and answers, “adhered to the Ordinary’s interlocutor, and refused the petition.”

See Kilk., 30th July 1748, Ramsay against Butchers of Perth, under the title of “Trust implied from Circumstances.” 11th December 1765, Gilmor; 13th June 1766, Moodie against Auchterlony; 1765, Alison against Fair-holme.