Scottish Court of Session Decisions

The late George Robertson, merchant in Greenock, had a family of four sons and several daughters, the pursuer J. H. Robertson being the youngest of his sons. In 1817 he executed a trust-settlement, which contained the following provision:—“In the ninth place, I direct my trustees to pay to my son James Hunter, and to secure and set apart for my unmarried daughter Janet Robertson, the sum of £2000 each, to put them upon a footing with my other sons and married daughters, to each of whom I have already advanced a like sum of £2000 sterling.” Prior to the date of this settlement the testator's other children had received each a provision of £2000. Janet Robertson, the daughter mentioned in the above provision, was married in 1822, her father being a party to the contract, and binding himself to pay over the sum of £2000 in name of tocher to her and her husband, which was stated to be in satisfaction of her legal rights, and of “all that they can ask through his death.” In 1824 James Robertson, then a clerk in the Greenock bank, came of age. Subsequent to that event his father, who was an extensive partner of the bank, transferred a sum of £2130 from his own stock-account to a stock-account opened in name of James, who was thereby placed upon an equality in regard to amount of stock with a junior partner in the bank, and became himself thenceforward a partner.

In 1825 George Robertson prepared a holograph statement of the amount of his property, which he entitled “statement of my property, as near as I can calculate it really worth on 16th May, 1825,” and which was intended for the information of his trustees at his death. To this paper he in 1826 appended the following holograph declaration, also referring to his trust-settlement:—“The half of the Royal Close, &c. I declare to be part of my moveable property, and to be divided accordingly amongst my children, agreeable to their respective proportions. My son James has been paid the provision of £2000, and my daughter Janet's provision of £2000 I have also settled, by granting a bond or obligation for it, for which I pay five per cent interest, and consequently it falls to be a debt against my estate, and to be paid for accordingly. My bill to Mr Thomson is now only £5000. (Signed) George Robertson. Greenock, 27th May, 1826.” The name of Janet contained in this declaration, being interlined in the original writing, was authenticated by the initials of the testator.

After the execution of his principal settlement, George Robertson executed seven codicils at different periods, none of which bore any reference to the special provision of £2000. One of these codicils was executed the day after the date of the holograph declaration. He died in 1828. Prior to his death he had caused a box containing the settlement of 1817, and various subsequent codicils (which were all prepared by professional men) to be lodged in the Greenock bank, whence they were subsequently taken. The holograph declaration above-mentioned was found in a private repository of the deceased.

Thereafter James Robertson raised action against the trustees under the above settlement, setting forth the transfer of stock already mentioned, which he alleged to have been made by his father animo donandi, and also the provision in his favour in the settlement, and concluding for payment of the sum of £2000 so provided, with interest from the date of the testator's death.

In defence against the action the trustees pleaded,—

1. This being purely a question of intention, the transfer of money by the testator, from his stock-account, in favour of the pursuer, must be held to have been made in satisfaction of the special provision, the express object of which was to place the pursuer on an equality with the testator's other children; and the holograph writing of 27th May, 1826, is an effectual declaration on the part of the testator, that the special provision had been satisfied and extinguished.

2. That holograph writing imports a revocation of the provision claimed as originally directed to be a burden on the testator's succession after his decease.

3. Independently of that holograph writing, the period, the amount, and the other circumstances of the advance to the pursuer, taken in connexion with the general objects of the testator's settlement, and the principle of the division of his succession therein provided for, imply that the advance was made in satisfaction of the special provision. ¹

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¹ Erskine, III. 9, 24.

The pursuer on the other hand pleaded,—

1. The legacy being in express terms, and by a regular and formal deed, which is in law regarded as the last act of the testator's life, bequeathed to the pursuer, he is entitled to payment of it, unless the defenders can show, by legal and competent evidence, that it was revoked by the testator, or discharged by the pursuer. ²

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² Watson v. Blair, Nov. 16, 1831, ante, X. 12; Gillespie v. Donaldson's Trustees, Dec. 22, 1831, ante, X. 174.

2. The transfer of the bank stock cannot import a discharge of the legacy; if both these had been bequeathed, both would in law have been due; ³ and taking it as a case of anticipated payment, a writing under the hand of the party receiving the payment would be requisite. ⁴

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³ Stuart v. Fleming, July 24, 1623, M. 11,439; Stirling v. Deans, June 20, 1704, M. 11,442; M'Intyre, March 1, 1821, F. C.; Elliot, Feb. 27, 1823, ante, II. 249 (new ed. 218); Lindsay, Feb. 6, 1827, ante, V. 297 (new ed. 276).

⁴ Mollison v. Buchanan, Feb. 22, 1822, ante, I. 345 (new ed. 324).

3. The holograph declaration founded on by the trustees is not a final declaration of intention, and is not entitled to the construction put upon it; more especially as it has not been reduced into the shape of a formal deed, like the other codicils to the settlement. ⁵

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⁵ Reay v. Cowcher, 1 Haggard's Eccles. Reports, 75, and 2,254; Munro v. Coutts, 1 Dow, 437.

The Lord Ordinary “sustained the defences,” and assoilzied the defenders with expenses, adding the subjoined note. ^*

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^* “ Note.—The Lord Ordinary will not take it upon him to say, that this case may not admit of reasonable doubt and difference of opinion. But he has not been able to take any other than a very simple view of it as a case depending on its own facts.

“Mr Robertson, the testator, having a numerous family, and extensive property, had laid down a rule to himself of giving a sum of £2000 to each of his children; to the daughters on their marriage, and to the sons on their majority; meaning to settle the rest of his estate by testamentary deeds. At the date of his principal trust-settlement, on the 6th June, 1817, he had already made this advance of £2000 to each of his children, excepting only the pursuer, James Hunter Robertson, and his daughter, Janet Robertson; the former of whom was then under age, and the latter unmarried. Taking this into consideration, and evidently assuming, that he might possibly die before the time came for making the same payment to each of them respectively, he directs his trustees to pay to the pursuer, and secure for Janet, the sum of £2000 each, ‘ to put them upon a footing with my other sons and married daughters; to each of whom I have already advanced a like sum of £2000 sterling.’ The deed contained no special provisions for any of the other children, except a conveyance of the chief part of his heritable property to his eldest son. It appointed the residue of the estate to be divided among all his children and their families, in the proportions, and in the special manner laid down.

“It is very manifest, that if Mr Robertson had died before the pursuer came of age, or Janet Robertson was married, or before the contemplated advance had been made to them respectively, they would just have been entitled to the sum of £2000 each, in the manner directed; and their claims could not in any way have been enlarged by any thing which the testator found it necessary to do for others of his family in his lifetime, or by any thing contained in the codicils which he executed from time to time, except as those codicils might directly affect their interest. The very case of the pursuer is, that none of the seven codicils afterwards executed bears any relation to the special provision of £2000.

“Now the simple state of the fact is, that Janet Robertson was married in 1822, and the pursuer came of age in 1824; that on the first of these events he bound himself in the marriage contract to pay £2000 to Janet's husband; and afterwards granted bond for that amount, declaring it to be in satisfaction of all that his daughter could claim, except what might be bestowed through good will; and that soon after the second of these events took place, he advanced to the pursuer, by a transfer of stock of the Greenock bank, £2130, 17s. 1d.; and it is explained, that the excess of this sum, beyond £2000, was given for the purpose of placing the pursuer precisely on a footing with another junior partner of the company.

“If there were nothing more in the case, the Lord Ordinary thinks, that as a matter of plain intention, it could scarcely be doubtful, that the advance thus made to the pursuer, as it did fully place him on a footing with the other members of the family, in respect of the advance of £2000 to each upon marriage or majority, must have been meant to satisfy and supersede the testamentary provision made for that single and declared purpose; and it surely was as clearly so intended, as the obligation and bond to Janet and her husband, on her marriage, were granted with that distinct purpose. But yet if there were nothing else to guide the judgment of the Court, the Lord Ordinary could understand that a question of legal presumption might be raised, which it might be difficult to get the better of, however clear it might be thought, that from the connexion of the circumstances such must have been Mr Robertson's intention, when he himself made that advance to the pursuer, precisely in the same manner in which he had made a similar advance to another son, by a transfer of stock previous to the date of the settlement.

“But it appears to the Lord Ordinary, that all presumptions are here completely excluded, because the testator has, by a probative writing under his hand, declared in clear and unambiguous words what his real intention was. It appears, that soon after that advance of stock to the pursuer, Mr Robertson had made up a statement of his property on the 16th May, 1825; that he had kept that statement by him; and about a year after, having resumed consideration of it, had added the declaration in these terms:—‘The half of the Royal Close, and the whole of James Robertson's cellar, on both which I hold an heritable bond; and the amount of Claud Girdwood and Co.'s debt, for which I hold a conveyance to their heritable property, I declare to be part of my moveable property, and to be divided accordingly amongst my children, agreeable to their respective proportions, as per my settlement. My son James has been paid his provision of £2000, and my daughter Janet's provision of £2000, I have also settled, by granting a bond or obligation for it, for which I pay five per cent interest, and consequently falls to be a debt against my estate, and to be paid for accordingly. My bill to Mr Thomson is now only £5000. Geo. Robertson. Greenock, 27th May, 1826.’ This document is entirely holograph of Mr Robertson. It is begun on one side of the sheet, and continued on the other. But it is not only carefully signed on both pages, but the name of Janet having been interlined, the initials G. R. are both prefixed and subjoined to the word.

“There can be no doubt whatever, that this writing was made by the testator with great deliberation. The statement of his property prefixed to it had been carefully preserved during twelve months; and every one of the points embraced by the writing had relation to the estimate so made, as tending to affect the amount of the divisible funds to be committed to the trustees. Subjects legally heritable, were appointed to be treated as moveable in the distribution of his estate. It was declared, that Janet's provision was satisfied by the bond granted on the marriage, though it remained a debt to be paid. A debt, which stood in the statement at £6456, 5s. 7d. was mentioned as being now reduced to £5000; and the pursuer's provision of £2000, is expressly stated to have been paid. The pains with which Mr Robertson had written and signed the instrument, demonstrate that it was no loose or casual operation; but was deliberately executed as declaratory of his intentions, and the Lord Ordinary can see no ground on which it can be treated otherwise.

“It has been discussed, whether this instrument imports a revocation of the provision. If revocation were necessary, the Lord Ordinary does not see why it should not have that effect, there being an express reference to the settlement in the body of it, and a clear reference to it in the whole substance. But this is not the view which he takes of it. He thinks that the provision was from the beginning of a special nature, to secure to the pursuer the advance of £2000 at his majority, in order to put him, in that point, on a footing with the other children. The advance had been made: But being made without any declaratory deed executed, questions might have been raised as to the intention to be presumed. But equally with regard to the pursuer, and with regard to Janet, Mr Robertson himself declares what his real meaning was. It is a probative writing under his hand, explanatory, first, of the nature of the provisions themselves; and, secondly, of his positive intention, in the advance made to the one, and the obligation granted to the other, that they were both alike intended to be in satisfaction of those provisions. The Lord Ordinary simply takes it as evidence of that intention; and he cannot see how it can be rejected as evidence to that effect. It seems to him to afford no argument against this, that while he made other codicils, he made no formal codicil as to this point. In his view, it required no codicil. All that was wanted, was conclusive evidence of that intention in the two acts; and this the paper was sufficient to afford. It is true that he made a codicil, by which, with more formality, he appointed the heritable subjects to be treated as moveable. It may have been thought that this was necessary in such a matter to remove doubt. The declaration in this paper might probably have been sufficient, even for that purpose; but if it would not, it could only have been because of the heritable nature of the subjects. There is no similarity between that and such a simple declaration of intention as that regarding the provisions, which existed without any legal deed, and only required to be satisfactorily shown.

“The pursuer raises a great deal of discussion about the situation in which this was found, and the way in which the deed and codicils had been deposited in a box, and lodged in the Greenock bank. If this were regarded as a deed revoking or altering the deed of settlement, that point might deserve more consideration; though the Lord Ordinary is not convinced that the effect of the instrument could be excluded by such an accidental circumstance. But in the light in which he regards it, he thinks that it is quite enough that this holograph writing was deliberately executed, and had been carefully preserved by the testator in any one of his own private repositories. The changes taking place, immediately before his death, cannot affect this; and indeed Mr Robertson knowing thoroughly his own intention, and what must have been the understanding of the pursuer, as it certainly was of Janet and her husband, might never think at such a moment of desiring any one to look for the paper.

“Finally, the Lord Ordinary thinks it quite extraneous and irrelevant to the question, that in consequence of the misfortunes in trade of some of his sons and sons-in-law, Mr Robertson had been obliged, after all of them had received their £2000, to make large advances on their account. The point in which they were all to be put on a footing, and to which the provision in the settlement expressly refers, was the advance of £2000 at marriage or majority; and it surely has no tendency to illustrate the present question, that under the pressure of calamities, after that sum had been paid to all of them, Mr Robertson may have made advances to others, and taken securities or obligations in relation to such advances.

“The Lord Ordinary thinks it right to say, that he has hesitated on the question of expenses. But in the end, he has come to think, that as, in his opinion, the actual intention of the testator is perfectly clear, however the pursuer might be entitled, if so advised, to try the question of legal presumption, he ought to do so, if unsuccessful, at his own expense; and that it would be unjust to throw a heavy expense on the other parties, who are supporting the settlement according to what he thinks the clear design of the maker. But if the case goes to the Court, this will of course be open for consideration.”

Robertson reclaimed.