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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v Burns and Stewart [1835] CA 13_326 (27 January 1835)
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Cite as: [1835] CA 13_326
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SCOTTISH_Shaw_Court_of_Session
Page: 326↓
v.
Subject_Parent and Child—Legitim—Succession—Collation—Discharge—Proof—Writ.—
1. Terms of a clause which held to import a discharge of legitim and dead's part.
2. The claim to legitim and dead's part having been renounced by a daughter in her contract of marriage, in consideration of a certain sum, and what her father might bequeath in his testament, and falling a testament, the sums that might be standing in her name at his death in certain specific bonds, then wholly or partly taken in her name—circumstances in which held, that, notwithstanding the payment of part of these bonds without reinvestment of the money in her name, she was entitled to the amount. 3. Letters and memoranda, posterior to the contract, taken into view in determining the understanding of the parties. 4. Collation of separate provisions has no place as to dead's part.
The late James Wright, writer in Stirling, had three daughters, Agnes, Mary, and Diana, and one son, Matthew, children of a marriage proceeding on a contract, by which his wife (who predeceased him), in consideration of the provisions therein made, assigned to him her whole moveable estate and effects. In 1818, Diana, the youngest daughter, was married to Dr Stewart of Perth, formerly a surgeon in the army, a contract of marriage, to which Mr Wright became a party, being previously executed. By this contract, Mrs Stewart was on the one hand secured in the allowance to the widows of army surgeons, in the event of her survivance, and had assigned to her the liferent of any property which Dr Stewart might leave at his death; while on the other hand, Mr Wright, “for and on account of the said Diana Wright, his daughter, binds and obliges himself, his heirs, executors and successors, betwixt and the term of Martinmas next, to lend out, upon good heritable security, the sum of £4000 sterling as the portion of the said Diana Wright, and to take the bond or other security in favour of herself in liferent, and the children of the said marriage equally in fee, and failing of such children, to herself and her heirs and disponees whomsoever in fee, exclusive always of the jus mariti of her said intended husband, which right he hereby renounces. And in regard the said Diana Wright is already, alongst with her said father, heritably secured in the sum of £2000 by heritable bond, &c. granted by John Hamilton Dundas, Esq. of Duddingston and Westburn, over his estate of Westburn in the county of Lanark, it is hereby declared, that the said James Wright shall, betwixt and the said term of Martinmas next, convey the said bond, and infeftment thereon, absolutely to and in favour of the said Diana Wright in the terms above prescribed; which conveyance being so executed and delivered, the said sum of
In 1825, a marriage was agreed upon between Agnes, the eldest daughter, and Francis William Clark, who had become assistant, and was afterwards admitted a partner, of Mr Wright in his business. It did not appear that Clark had any property of his own at the time, and no contract of marriage was entered into; but in contemplation of the marriage, and of the same date with it, viz. 2d September, 1825, Mr Wright executed a disposition and assignation, whereby he conveyed to his daughter, her heirs, and assignees, excluding the jus mariti of her husband, several bonds and securities (certain of which he had already taken in whole, or in part, in her name), amounting in all to £6125, but there was no declaration of this provision being accepted in satisfaction of legitim or dead's part, though in a receipt granted by Mrs Clark to Mr Wright in November 1825, for the interest on one of the bonds conveyed, she described it as having been “conveyed to me in part of my patrimony.”
In 1828, the second daughter, Mary, married the Reverend Mr Burns, proprietor of a property called Garvald, which Mr Wright, at the time of the marriage, considered worth £7000 or £8000, though this was a considerably over estimate of its real value. At this time there were certain securities for part of Mr Wright's funds lent out, which, agreeably to his practice of taking such rights in name of his daughters, he had taken, wholly or partly, in her name. These were, an heritable bond over certain lands called Leitchtown for £2250; a personal bond of Messrs and Mrs Fletcher for £1200; an heritable bond for £1100 over the estate of Balhadies, all taken to the extent of one-half, and an heritable bond of £400 over Silvermills, wholly in her name, amounting in all to £5695. By the contract of marriage between Mr and Mrs Burns, to which Mr Wright became a party, and which was prepared in the office of Mr Wright and his son-in-law Clark, without any agent being employed by Mr Burns, the latter conveyed his estate of Garvald, under reservation of his own liferent, to Mrs Burns and her heirs and assignees; while Mr Wright, on his part, came under obligations thus expressed:—“In contemplation of the said provision above-written, made by the said Reverend John Burns in favour of the said Mary Wright, the said James Wright hereby binds and obliges himself, his heirs, executors and successors, to content and pay to the said Mary Wright, upon her marriage-day, the Bum of £3020 sterling, but exclusive of the jus mariti, ceurtesy of Scotland,
The provision of £3020, mentioned in the contract, having been paid up by Mr Wright, Mrs Burns, with concurrence of her husband, of date 2d April, 1830, granted a discharge, prepared in the office of Messrs Wright and Clark, which, after narrating the contract and the payment above mentioned, proceeded thus:—“Therefore I, the said Mary Wright, otherwise Burns, with the special advice and consent of the said John Burns, and I, the said John Burns, for myself, and for any interest I may have therein, and we both with one consent and assent, for our respective rights and interests, have exonered and discharged, as we do hereby exoner, acquit, and simpliciter discharge the said James Wright, and his heirs, executors, and successors, of the foresaid principal sum of £3020 sterling, and of all claims following thereon, as well as of the said contract of marriage itself, in so far as it relates to the said obligation for payment of the said sum of £3020 sterling.”
In the mean while, the proprietor of Silvermills, over which the bond for £400 mentioned in the contract extended, having died, his representatives insisted on paying up the money. On this Mr Wright wrote Mrs Burns this letter:—
“Stirling, 7th May, 1829.
“My Dear Mrs Burns,—I have to inform you that the laird of Silvermills died lately; and his executors having intimated to me that the £400 which I lent on his property is to be paid up at this term, and therefore you and I and Matthew will have to grant a discharge and renunciation of that debt. But rest assured that, how soon I find an eligible security, the £400 will be lent out, in my name and yours, as in the present bond over Silvermills; that is, to you and your heirs after my decease, &c.; and I will send the discharge to you when it comes from Edinburgh. In the mean time, remain, my dear Mrs Burns, your ever affectionate father. (Signed) James Wright.
“I am rather disappointed at the paying up this £400 so soon, as I considered the loan to be permanent; and the reduction of interest from five to two and a-half is not pleasant; but the laird having died, I cannot refuse payment. Next month I will send you receipts for the interest on Balhaldies' estate, which I told Mr Burns will be only at four and a-half per cent.”
He afterwards, on the 23d November, transmitted to Mr Burns an extended
“Garvald, 24th November, 1829.
“My Dear Father,—From your letter to Mr Burns I find I am required to sign my name to the discharge enclosed. This I have no hesitation in doing, provided you adhere to the proposal you several times made, both in writing and conversation, that the said sum should be again put in my name. This, I make no doubt, you intend doing; but as both experience and observation must furnish you with many examples of unpleasant consequences resulting from loose transactions, of which the late Mr Burns's affairs is a melancholy proof, and ought to operate as a powerful incentive to act otherwise. Being deeply involved in these matters, and feeling how gloomy an aspect every thing connected with them now assumes, and having perhaps to struggle for many years with what is now considered a very small pittance, you cannot blame me if I request an obligation upon stamp paper before signing the discharge, that the said sum shall still be considered part of my patrimony, as mentioned in the contract. This, I think, you cannot object to, considering the shattered state of our affairs.”
In answer to this, Mr Wright wrote her:—“My Dear Mary,—I have been so much engaged of late, that your answer to my late letter, enclosing a discharge, is not sooner replied to. It was no wish of mine to uplift the £400 in question; on the contrary, to remain till my decease; but the borrower having died, and intimation made, I had no alternative. You will see from your contract of marriage how anxious I was to bind myself to fulfil that obligation on me at my decease, and that you are bound to co-operate with me in satisfying borrowers when they will no longer keep my money; but I presume you had not examined the contract when you wrote me, because it is on stamped paper, and duly recorded, and equally binding on me as on you, and therefore I annex a copy of that part of it which relates to this business. You will therefore see the propriety of subscribing the discharge as pointed out, and returning it without delay.”
Mrs Burns again replied.—“My dear father,—When I last wrote you, I thought I had merely to mention an omission, which, in the hurry of business, might have escaped you—I mean the obligation on stamp to which I alluded to in a former letter. This you take no notice of, but urge the necessity of signing the discharge without delay. That part of the contract which you have taken the trouble to transcribe, was quite unnecessary, as I have perused the one in my possession too often to require a copy; and when I requested an obligation respecting the sum in question, I referred not to the contract, but to justice. You assured me, not only when alone, but in presence of others, that it was verbatim with Mrs Clark's; and you added with emphasis, repeatedly, that you
The correspondence closed by this note from Mr Wright:—“My dear Mary,—You never was more foolish than at present. Please return the enclosed letter from Mr Crombie, and the discharge, signed or unsigned, that I may take it with me to Edinburgh; and, notwithstanding all you have done, you will still find me your affectionate father.”
The money was subsequently paid up without Mrs Burns' concurrence to the discharge having been obtained, but it was not re-invested in her name by Mr Wright. In like manner the bond over Leitchtown was paid up by the debtors, without having been called for by Mr Wright, but there was no re-investment in name of Mrs Burns. In January 1831, Matthew Wright, the son, died. His father had advanced him £10,420, and his sisters, who succeeded to him, agreed that Mr Wright should have the liferent of the property left by him. Mr Wright, however, died in May of the same year, leaving, over and above what he had paid to his daughters and his son, £14,000 in money, and heritable property worth £2200. It did not appear that Mr Wright had executed any settlement, but among other papers two holograph memoranda were found in his repositories. The one had reference to the provisions in Mrs Burns' contract of marriage, and was as follows:—
“23d January, 1828.
|
“Parcel 1st. Transfer from Mr Keith, 1819 |
£500 0 0 | |
|
Parcel 2d. Transfer from John Sharpe, 1821, |
500 0 | |
|
Parcel 3d. Transfer from William Wright of Broom, 1821, |
| |
|
£1420 0 0 | ||
|
Cash, per receipt by Mrs Burns, 13th July, 1829, |
| |
|
£3020 0 0 | ||
|
Payable to her at her father's death, by her contract of marriage:— |
||
|
1. The half of £2250, which was secured on the estate of Leitchtown. |
|
|
|
Carried forward, |
£1125 0 0 |
|
|
Brought forward, |
£1125 0 0 |
£3020 0 0 |
|
2. The one-half of £1200, due by Messrs and Mrs Fletcher of Edinburgh, per sonal bond. |
600 0 0 |
|
|
3. The half of an heritable debt of £1100, secured on the estate of Balhaldies, |
550 0 0 |
|
|
4. The sum that was secured on the lands of Silvermills, at Edinburgh, but which was obliged to be received by Mr Wright at the death of borrower, in 1829. |
|
|
|
| ||
|
£5695 0 0” |
The other was backed—“Mrs Clark £6125, 2d September, 1825,” and stood thus:—
|
“1. Bond Finzean, |
£3000 0 0 | |
|
2. Half of £2250, Leitchtown, |
£1125 0 0 |
|
|
3. Bonskeid's bond, |
1400 0 0 |
|
|
4. Half of Fletcher's bond, |
|
|
|
| ||
|
£6125 0 0” |
To this was subjoined this notandum, contrasting the sums respectively mentioned in the contract of Mrs Burns, and the conveyance to Mrs Clark.
|
£6125 0 0 |
|
|
|
£530 0 0 |
Immediately on Mr Wright's death, his three daughters applied to the Commissary of Stirling to be decerned executors. Mrs Clark opposed the application on the part of Mrs Burns, on the ground that the latter had in her contract renounced her claim to any share of the dead's part, and the Commissary having decerned in favour of Mrs Burns, as conjunct executor with her sisters, Mrs Clark brought a reduction of the decree. She also instituted a process of count and reckoning against her sisters, and two processes of multiplepoinding were likewise raised, for the purpose of determining their respective interests in the succession, all which processes were conjoined.
Mrs Clark contended, 1. That, as both of her sisters had in their contracts of marriage renounced their legitim, and Mrs Burns had also renounced her share of the dead's part, she (Mrs Clark) was entitled
Mrs Stewart (besides maintaining that there was no effectual discharge of her legitim in her contract) concurred with Mrs Burns in contending, that, taking the whole deeds in favour of the several daughters together, and also Mrs Clark's discharge of the interest of one of the bonds conveyed to her (in which she described it as conveyed as part of her patrimony), the true intention of Mr Wright must be held to have been, that the special provisions to each were in lieu of legitim as to all of them, and that they were all to share equally; and, at all events, that Mrs Clark was bound to impute her special provisions as pro tanto in extinction of her claim.
Mrs Burns separately pleaded, 1. That she had not unconditionally discharged her legitim, and, particularly, that the discharge of her claim on the executry was not tantamount to a renunciation of her share of dead's part; but, 2. That, at all events, she was entitled, not only to the sums actually standing on securities in her name at the time of Mr Wrigh's death, but to the whole sums mentioned in the contract. These, she contended, on a due construction of the contract itself, and according to the understanding of the parties, as evinced by their correspondence, and the memoranda of Mr Wright, must be held as provided to her in the event of his leaving no settlement, the more especially as he had not himself called up the two bonds which were paid—these having been forced on him contrary to his expressed intentions and desire.
The Lord Ordinary, on advising Cases, reported the cause to the Court, issuing at the same time the subjoined note. *
_________________ Footnote _________________
* “Though the Lord Ordinary heard counsel in this case at great length, the debate was not concluded when the cases were ordered. And as the papers are all already printed, they may be boxed immediately, and a judgment of the Court at once obtained.
“The Lord Ordinary will only intimate his impression with regard to the general character and leading points of the case.
“He is of opinion that it is a case which must be determined according to established rules of law. It is not for the Court to consider what Mr Wright ought to have done in the distribution of his property—what it might have been natural for him to do—whether in the result the distribution is fair and equal or not; or any such question. The single question is, what Mr Wright has done, whether in transacting with his daughters and their husbands, or by any testamentary instrument. There is no testamentary deed or writing produced; and, therefore, the case altogether depends on the deeds and transactions inter vivos, between Mr Wright and the present parties respectively.
“And it does appear to the Lord Ordinary, that, as upon the marriage of each of the parties regular deeds were executed, the questions arising ought to be determined according to the legal import and effect of those deeds. He does not think that any of the parties gain much by the reference to other writings; but if he were to decide the cause, he should think it his duty to regulate his judgment by the deeds regularly executed—except, perhaps, in one minor point, where certain holograph letters may deserve consideration.
“1. It is too clear for argument, that all claim to legitim by Mrs Stewart is effectually discharged. Unless the law is to be rescinded, the contrary cannot be maintained.
“2. The Lord Ordinary thinks it equally clear, that all claim of legitim by Mrs Burns is also effectually discharged. A very anxious attempt is made to maintain that the express discharge in the deed is qualified by a condition, that either the securities, then standing in the name of Mrs Burns, should be preserved to her, or that an equal sum should be settled to her by the voluntary deed of Mr Wright. The Lord Ordinary is unable so to construe the marriage-contract, which appears to him to be clear and unambiguous, giving the £3020 absolutely to Mrs Burns, and leaving the other sum of £2675 dependent on the will of Mr Wright. But if there be any claim to the full amount of that sum, it would still be only a claim to be made available at the death of Mr Wright, and not a condition, which, on the change of the securities, would extinguish the discharge of the legitim.
“3. Neither is the Lord Ordinary able to see any legal ground for holding that Mrs Burns's claim to a share of the dead's part is not also discharged. That a child's claim to dead's part may be discharged, is settled by all the authorities. That the terms executry and dead's part are considered as synonymous in such a deed, is also clear from the authorities quoted, and particularly the case of Campbells against Lady Inverliver, July 12, 1738, as reported by C. Home and Kilkerran. And the purpose of any such discharge must always be to provide for the very case of the father dying intestate. If there be ground for claiming the sum of £1525, which was paid up to the holders of the securities, it must be on a different ground from any qualification of the express discharge of the executry.
“4. The Lord Ordinary thinks it a question fairly open to argument, whether that sum of £1525 may be justly claimed as surrogatum, or something like surrogatum, of the sums in the securities, which were called up by the creditors, and not paid up voluntarily by Mr Wright, upon the presumed intention of Mr Wright in the marriage-contract, and the admitted circumstances under which he so put an end to those securities. But the Lord Ordinary must confess, that if it be held that the executry is discharged by the marriage-contract, he should find great difficulty in seeing a safe and solid legal ground for coming to this conclusion; because he thinks that every thing, as to the sums mentioned in the marriage-contract beyond the £3020, depended on the will of Mr Wright, and that he has not expressed any suck will in any legal form. At the same time, Mr Wright's letter of the 7th May, 1829, at least with regard to the £400, may be admissible in this particular point, and may be deserving of the serious consideration of the Court.
“5. The Lord Ordinary is of opinion, that according to the terms and legal import of the deed in favour of Mrs Clark at her marriage, the acceptance of the provisions thereby made in her favour cannot be held to import a discharge of the legitim. The rule is fixed, that legitim is not discharged by implication; and there are no words in this deed which have ever been held to import a discharge of legitim; and although there is much argument used by both parties on this point, the Lord Ordinary is not able to find authority for holding, that without any words of discharge, a discharge may be inferred from collateral circumstances, while the circumstances relied on are also of very doubtful effect.
“6. The Lord Ordinary is of opinion, that if the legitim has been discharged, both by Mrs Stewart and by Mrs Burns, Mrs Clark is not bound to collate her special provisions before claiming legitim; because ‘collation is admitted only among those who are entitled to a legitim;’ and, farther, that collation does not take place as to the dead's part.
“There are some other points of less importance discussed in the cases; but the Lord Ordinary does not think it necessary, in reporting the cause, to express any opinion concerning them. The case is certainly a hard one, especially in regard to Mr and Mrs Burns; but the Lord Ordinary would be afraid of shaking well established principles and rules of law, in yielding to such feelings of hardship, or judging of the effect of solemn deeds by loose notions of what it may be thought would have been equitable or fair. No result could possibly have been more opposite to the admitted intention of Mr Hogg of New Liston, than the decision by which the one-half of his moveable estate was adjudged to Mrs Lashley exclusively as legitim, in respect of the discharges granted by his other younger children.”
The Court, after appointing farther argument, delayed to consider the cause with reference to Mrs Burns' special claim for the amount of the bonds that had been paid up.
The cause was this day put out to be advised.
I am perfectly satisfied that both Mrs Burns and Mrs Stewart have completely discharged their claims to legitim, and that the former has also discharged her claim on the executry. But, on the point as to Mrs Burns' special claim, we wished to hear further argument, and that argument we have now heard.
I am aware that this is a delicate question, and that your Lordships are called upon to decide it on legal, and also upon equitable principles. I have formed a very clear opinion as to the ampleness and sufficiency of the discharge by Mrs Burns of every right competent to her against her father or his succession, for I have not the least doubt that the discharge of the claim of “executry” is the same with a discharge of the claim to the dead's part. But, while I have formed this opinion, I have also formed a clear opinion as to the obligations undertaken by the father, as the counterpart of that discharge. When parties have executed a deed, based on the principles of bona fides, and where there is not the least ground to suppose that the one party meant to take advantage of the other, but that every thing was to be done in the most equitable terms, I apprehend that that principle of bona fides comes to be of extreme importance; and, in the present case, it does appear to me, when Mr Wright's eldest daughter insists that full effect
The commencement of the deed appears to me to be extremely important. The property of Mr Burns did not turn out to be so good or so valuable a consideration as was expected at the time when the contract was entered into; but we have this gentleamn conveying to his wife his property of Garvald out and out, and as this property was, at the time, considered to be valuable, there is no doubt that this consideration must have weighed strongly on the minds of all the contracting parties. Then the contract, to which the father was a party, proceeds thus:—“In contemplation of the said provisions above written, made by the said Reverend John Burns in favour of the said Mary Wright, the said James Wright hereby binds and obliges himself, &c., to content and pay to the said Mary Wright, upon her marriage-day, the sum of £3020 sterling.” Then follows an enumeration of the different securities and sums of money conveyed or paid to her on her marriage-day, which are stated to make “up the above-mentioned sum of £3020 sterling.” Then there follows a clause in these terms, upon which I lay very great stress:—“Moreover, the said James Wright hereby declares that, over and above the foresaid sum of £3020, the said Mary Wright shall receive”—your Lordships will observe, “ shall receive at his death whatever farther provisions he may think proper to give her under his settlements; and, in the event of his dying intestate” (the case which has happened), “and without making a settlement quoad her, hereby declares that she shall be entitled to the various sums of money standing in her name in the after-mentioned bonds and securities.” Here is a declaration that she shall receive the various sums of money then “standing in her name in the four bonds which are there enumerated, making,” as the deed proceeds, “in whole, the sum of £2675 sterling, which, with the sum of £3020 sterling now advanced, makes her patrimony to be £5695 sterling.” There seems here no ambiguity or doubt as to what Mrs Burns was to be entitled to receive, and it appears to me to have been clearly the intention of the parties that, in the event of Mr Wright not making a settlement quoad her, Mrs Burns' patrimony was to be £5695. The contract goes on to state, “which sum of £3020 sterling, the additional provisions to be made for the said Mary Wright in her said father's settlements, or, in place thereof, as before mentioned, the sums of money which may be standing in her name in the above-mentioned securities at the time of his said death, she, the said Mary Wright, and her said intended husband, the said Reverend John Burns, hereby accept of as in full satisfaction and payment to her and her said intended husband of all bairns' part of gear, legitim, portion, natural executry, and every other thing else that she or he might ask or crave of the said James Wright, her father, or his representatives, through his death, or the death of the said Mary Powell, his spouse, or in any other manner of way whatever, unless her said father shall be inclined, from good-will and favour towards his said daughter, to make any farther provisions in her favour.” Now, looking at those clauses of this deed, it appears to me that its meaning and import is, that Mrs Burns shall be entitled, over and above the specific sums thus paid down to her on her marriage-day, to any sums which he may provide for her in his settlement. But if there be no settlement, then we have a separate set of provisions amounting to £2675, to which, in that case, Mrs Burns was to he entitled.
It was in respect of the advance or payment so made on the occasion of the marriage, and on the assurance that she would receive some provision under Mr Wright's settlement if he executed any such deed; and, failing his doing so, that she should receive the whole additional sum of £2675, that Mr and Mrs Burns granted the present discharge.
With regard to that part of the deed which contains an obligation on the parties to join with Mr Wright in deeds discharging or calling up the sums contained in the bonds so provided to Mrs Burns, I think the answer is most satisfactory, that, as power was reserved by Mr Wright to test upon these bonds, and to make further provisions upon Mrs Burns, it was necessary, if he was to exercise that power, that he should have full control over his estate.
If, however, Mr Wright did not exercise the power which he thus reserved of making farther provisions to Mr and Mrs Burns in his deed of settlement, then they must be entitled to get the sums which were contained in the bonds, because the declaration is, that Mrs Burn's patrimony is to be £5695, and these sums are necessary to make up that patrimony. With such a declaration in the face of this deed, as the consideration for which she grants her discharge—a deed, too, to which the father, as well as the husband, who was making most ample and liberal provisions for her, are both parties, and seeing the very liberal manner in which the father conducts himself towards her, I think that, upon the principles of justice and clear principles of law, we cannot deal with this deed in any other way than as a fair contract between man and man; and I put upon it that construction which is borne out by the words of it, that the father was bound to make a liberal and farther provision for her; but, if he did not make such farther settlement or provision, then, that Mrs Burns should have right to the sums described in her contract, by which her patrimony should amount to £5695.
Holding, therefore, that Mr Wright was acting from paternal motives, and that he entered into this contract on the principles of bona fides, and that all the parties acted on the same principle, I hold that the principles of bona fides must apply to the whole deed. We cannot lay hold of the complete discharge on the one hand, leaving out the consideration on the other, but we must take the discharge and the consideration together. Now, I cannot see upon what principle it can be maintained, that the only consideration for this discharge was the £3020 paid down on the occasion of the marriage. On the contrary, it appears to me, that the discharge was granted on the reliance that an ample provision would be made to Mrs Burns in her, father's settlement; but it is admitted on all hands that no settlement was made by Mr Wright. And the provision in the contract for the case of Mr Wright not making a settlement is, that Mrs Burns shall have right to the sums standing in her name in certain bonds. The words “farther provision,” in that clause, are, I think, extremely important, because they demonstrate clearly the impossibility of holding that the £3020 was to be the whole fortune of this lady. Such being the fact, are we to find that no substantial benefit is to arise from that which was held out to these parties, and that this was all a delusion? Are we to suppose that Mr Wright took care to have the contract framed in such a manner as to entitle him to say, that, whatever your supposition, or whatever your reliance was upon its terms, I really meant no such thing? We cannot do so. It appears
Then what has taken place since the execution of the deed? In the first instance, the debtor in one of the bonds forces Mr Wright to take payment of its contents, and another of them dies. In neither instance did Mr Wright ask up the money, but when he did receive it, he commenced looking out for a new investment, which, however, he never obtained; and, when payment was thus offered of the contents of one of the bonds, the correspondence took place between Mr Wright and Mrs Burns which is printed in the Appendix, which shows that Mrs Burns made some objections to this money being received by Mr Wright, in which she was no doubt acting a very foolish part. But there is nothing in that correspondence to show that he had changed his intentions towards Mrs Burns, or that he did not still intend that she should have all the sums which had been standing in her name.
Now, though it certainly appears to me that, in construing this contract, we cannot look at any prior writings which may have passed between the parties, yet I think that, in a question of interpretation of a deed like the present, we are entitled to gather the intention of the parties from all their conduct, and that we are entitled to look to every letter and scrap of paper written after the date of the contract. This I hold to be perfectly legitimate; and, if it be so, let us look into what is proved in the writings in process to have been Mr Wright's understanding of this contract.
In the first place, I cannot lay out of mind the reservation contained in the discharge by Mrs Burns of the £3020. The discharge was prepared in the office of Mr Wright, and was either drawn or revised by Mr Wright himself. In this discharge, Mrs Burns acknowledges the payment of £3020. She discharges this sum, and all claims following on it, as well as the contract of marriage, but only in go far as it relates to the said obligation for payment of the said sum of £3020, implying a reservation as to something more. Now I conceive that this special discharge and reservation show Mr Wright's as well as Mrs Burns' understanding of the obligation which he had undertaken in his contract of marriage, and I cannot conceive the use of a reservation unless it had reference to a farther obligation or substantial additional provision, which was to be made to Mrs Burns.
In the second place, we have the holograph memorandum. In that document there is entered by Mr Wright himself, as payable to Mrs Burns, at her father's death, “by her contract of marriage,”
|
1. The half of £2250, which was secured on the estate of Leitchtown, |
£1125 0 0 |
|
2. The one-half of £1200 due by Messrs and Mrs Flet cher of Edinburgh, personal bond, |
600 0 0 |
|
3. The half of an heritable debt of £1100, secured on the estate of Balhaldies, |
550 0 0 |
|
4. The sum that was secured on the lands of Silvermills, at Edinburgh, but which was obliged to be re ceived by Mr Wright at the death of the borrower in 1829, |
|
|
Making in whole the sum of, |
£2675 0 0 |
|
Which, with the sum of |
|
|
formerly advanced, makes Mrs Bums' patrimony, |
£5695 0 0 |
This document I consider to be of very great importance, because it contains a statement of the sums which Mr Wright held to be payable to Mrs Burns at his death under her contract of marriage, and it contains the two sums of £1125 and £400, now in dispute, although these sums had been previously received by Mr Wright. It is quite clear from the terms in which these two sums are entered in this state, that they had been previously received by Mr Wright, and the fact that he enters them as being still payable to Mrs Burns, is demonstration, under Mr Wright's own hand, that he had the same views as to the meaning of this contract which I have. I hold this document to be very little short of a settlement, and if his name had been put to it, it would have been a settlement in favour of Mrs Burns, and while it would have given her a title to claim the amount from his representatives, it would have been a sufficient authority for them to pay. Besides, it is declared in this memorandum, that it is in respect of her contract of marriage that this sum is payable to Mrs Burns at her father's death, which alone shows clearly Mr Wright's understanding of its terms, and therefore the construction which I put upon this deed is no other construction than that which he has actually put upon it.
In the third place, there is the valuable and important document, holograph of Mr Wright, regarding the provisions both to Mrs Clark and Mrs Burns, in which we have the whole provisions to these parties set down as of precisely the same nature, and as if the differance in amount was the only difference between them. The document is dated 2d September, 1825, and is marked “Mrs Clark,” and after specifying her provisions, amounting to £6125, there is, on the left hand side of the document, the following marking, holograph of Mr Wright:—
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“£6125 0 0 |
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£530 0 0” |
The £5695 being the exact amount of Mrs Burns' patrimony, Mr Wright subtracts the lesser of these provisions from the greater, and on contrasting the one with the other, he makes the only difference between them the difference in amount, namely £530. This farther declaration under this gentleman's own hand, I hold to be a piece of important evidence.
Then there is the correspondence between Mr Wright and Mrs Burns as to
With all this evidence of Mr Wright's understanding of this contract, are we to suppose that he meant to deprive this daughter of more than £1500 of her patrimony. Being unable to form any such opinion, I am brought back to the fair and bona fide construction of this marriage contract, by which the husband and wife surrendered all legal claims against the father and his estate, and in which he declared that Mrs Burns shall have right to an additional provision if he did not make a settlement as to her which would make her patrimony amount to £5695. I am, therefore, for sustaining the claim of Mrs Burns for the two sums which were so accidentally paid to Mr Wright, who had no intention of calling up the bonds, and who never indicated a purpose contrary or at variance with the declaration in Mrs Burns' contract of marriage. By putting them in possession of these sums, they will only be put in possession of what was declared to be their patrimony.
On all the other points, my opinion entirely coincides with that given and expressed by the Lord Ordinary.
The Court accordingly pronounced the following interlocutor—“Find, 1st, That the claims of legitim or bairns' part of the gear competent to Mrs Mary Wright or Bunts, and Mrs Diana Wright or Stewart, respectively, at the death of their father, the late James Wright, were effectually discharged by them in their several contracts of marriage. 2d. That the claims of the said Mrs Burns on the executry or dead's part of gear of her said father, were also effectually discharged by her in her said contract of marriage, but that the similar claims of the said Mrs Stewart were not discharged. 3d. That over and above the sum of £3020, paid down on the day of her marriage, she was farther entitled at her father's death to claim the whole of the sums especially provided to her by the said contract, including therein the one-half the sum that then stood secured by bond over the estate of Leitchtown for the sum of £2250, and the whole of the sum of £400, secured over Silvermills, near Edinburgh, and that notwithstanding any change in the state of these securities in the lifetime of her father. 4th, That Mrs Agnes Wright or Clark, also daughter of the said deceased James Wright, had not discharged her claims either of legitim or executry: That she is not bound to collate the special provisions in her favour before claiming her shares of legitim and executry, and that she is also entitled to claim the one-half of the sum of £1000 in the bond over the estate of Balhaldies. 5th, That the personal estate of the said deceased James Wright falls to be divided into two parts, of which the one-half as legitim belongs to Mrs Clark, and the other half as executry becomes divisible equally between the said Mrs Clark and Mrs Stewart.—Remit to the Lord Ordinary to apply these findings, to hear parties as to whether the burden of these stipulations in Mrs Burns' contract of marriage is to fall on the heirs in the heritage or on the executors of the said father, and also on any other points in dispute not decided by the present interlocutor, and quoad ultra to proceed farther, as to his Lordship shall seem just.”
Solicitors: William Renny, W.S.— James Wright, W.S.—Agents.