Scottish Court of Session Decisions

In 1825, the late Mr Robert Jameson, advocate, lent to Captain Donald Mackenzie, his brother-in-law, the sum of £1200, for which Mackenzie granted his promissory-note. On 16th February, 1833, Jameson transmitted to Mackenzie his promissory-note cancelled, inclosed in a letter, in the following terms:—

“I have never had the least intention of considering the £1200 as a debt due to me, to be enforced in my lifetime. I look upon it as a sum advanced to your family as their part, in so far of what they may expect when my old clothes come to be divided. I therefore beg you to accept of the inclosed, and to consider all scores betwixt you and me closed, on the understanding always that this is a sum which I have paid for Robina and her family, and which is to be taken into the ultimate account. As we know one another too well for making speeches, I beg that you will never say a word more on the subject. Yours, R. J.”

Mr Jameson died in December, 1834. There was found uncancelled, in his repositories, a trust-disposition and settlement dated January, 1831, whereby the trustees were directed, inter alia, to divide the residue of the testator's estate into five equal shares, and, in particular, to pay “one-fifth to my said sister, Robina Mackenzie, and her husband the said Donald Mackenzie, in liferent, for their liferent use allenarly, and to the children procreated of the body of the said Robina, in her present or any future marriage, equally among them, in fee; and failing the whole of the said children before marriage or majority, this share is also to fall and devolve equally upon those who may at the time be my executors-at-law.”

This deed had annexed to it the following codicil (of equal date with the letter above-quoted):—“Having advanced twelve hundred pounds for Captain Mackenzie, my will is, that the capital of this sum be deducted from the share falling, by the foregoing directions, to his family, and considered as a payment to account of that share in the ultimate distribution. Edinburgh, 16 th February, 1833. R. Jameson.”

There was also found in the repositories a trust-disposition and settlement dated 25th October 1834, containing no express revocation of any previous settlement, and conveying the whole estate of the deceased to the pursuers, John Christison, Esq., advocate, and three other parties, who, with one exception, had been trustees under the former deed. After providing for the payment of certain annuities and legacies, the following direction was given as to the disposal of the whole residue:—“Lastly, I provide the rest and residue of my estate, subject to the burdens foresaid, to be equally divided amongst my two nieces by my brother James, and my three nieces and nephew by my sister Robina; but declaring that the shares of my nieces and nephew aforesaid shall be liferented by their mothers respectively, so long and no longer as my sister Mrs James remains a widow, and my sister Robina a wife of Captain Mackenzie, or a widow. In order to prevent doubt, I may state that my meaning is, that the said residue be divided equally, per capita, among the children of Robina and Mrs James Jameson aforesaid, who may survive me.”

In the distribution of the estate by the trustees under the settlement of 1834, a question arose whether the above-mentioned debt of £1200 should be taken into account in estimating the amount of the residue divisible in terms of the settlement at the testator's death, and should then be held as an advance pro tanto of the three-fifth shares left to the children of Mrs Robina Mackenzie, under burden of her liferent. With the view of trying this question, the trustees raised action against Mrs Mackenzie and her husband, and their children, stating the, circumstances already mentioned, and concluding to have it found and declared, “that the said principal sum of £1200 is to be accounted for, and to be held as added to the estate as at the period of Mr Jameson's death; and that the interest is thereafter to be imputed as part of the share of the liferent of the residue of the estate left to Mrs Mackenzie, the principal being to be imputed, on the termination of her liferent, as part of the share of the residue devolving on her children.

In defence it was pleaded—

1. As regards the defender, Captain Mackenzie,—the foresaid promissory-note, and debt of £1200 thereby constituted, was completely and irrevocably discharged.

2. As regards the other defenders,—their several interests in the succession are fixed, and must be exclusively ruled by the settlement of 25th October, 1834; of which neither the letter nor codicil of 16th February, 1833, form part, and in construing and giving effect to which, it is utterly incompetent to refer to these documents.

3. The true import and only sound construction of the said settlement is, that the defenders are entitled to take their several interests in the residue of the estate, without imputing, in satisfaction thereof, the sum of £1200 in dispute, precisely as if that sum had never formed any part of the deceased's estate.

In support of the conclusion of the action the trustees contended, that the debt in question had not been unconditionally discharged by the letter and codicil of February, 1833; that there was no evidence, in any subsequent writing, of an intention on the part of the testator to bestow the £1200 as a gift upon Captain Mackenzie, but the contrary, and donation is not to be presumed; that Jameson's letter was to be regarded as a declaration that Mackenzie was to hold the sum in trust for behoof of the members of his family, and to be imputed to their shares of the succession; and it was to be observed that, in the codicil of the same date, the word “capital” was employed.

The Lord Ordinary pronounced the following interlocutor, with the note subjoined ^*:—“Finds, that the succession to the residuary or free

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^* “The deed of 1834 is complete of itself, in so far as concerns the distribution of the testator's estate; and expressly directs the shares of the several parties to be paid to them under the several burdens therein mentioned, and no others, which of itself would be sufficient to supersede the previous obligation on the defenders, to allow £1200 to be deducted from their share of the succession.

“The only ground of doubt is, that the original deed of 1831, with its successive codicils, was found uncancelled in the testator's repositories at his death. But the preservation of that instrument is sufficiently accounted for by the tenor of the first codicil indorsed thereon, which is of the nature of a contingent declaration of trust as to certain lands, and in no way affects the distribution of the whole estate when ultimately realized. For the purposes of this distribution the whole is conveyed de novo to a substantially new set of trustees, two of those in the original deed being omitted, and one added, who was not in the former. These new trustees alone, it is apprehended, are now entitled to take up the property, and are bound (it is thought) to distribute it according to the plain and precise instructions contained in that most recent expression of the testator's will, which is their only title and directory, and supersedes both the former nomination of trustees, and all the instructions addressed specially to those so nominated.

“It was suggested by the pursuer, that, as the destination to the defenders is still substantially the same as in the first instrument, there is no room for inferring that, in executing the last, there was any change of purpose as to imputing the £1200 advanced to account of the share so destined in both. The completeness and independence of the last deed as a separate settlement, and the omission of any reference to such a condition in it, would be a sufficient answer to this suggestion. But there is a remarkable variance in the nature and value of the liferents provided to the defenders in the two instruments, which makes it highly reasonable to suppose that the total discharge of the £1200, resulting from the terms of the last deed, was intended to compensate for this variation. 1st, By the original deed, the liferent was to the husband as well as the wife, but now it is to the wife only: 2d, It was at first for the whole period of the wife's natural life; now it is to cease on her entering into a second marriage. Now the loan of the £1200 was to the husband (or the spouses), or in other words, to those who had this ample right of liferent, when it was conditioned that they should take it into account in claiming their shares under the settlement then existing. But when the extent and value of that liferent was so much narrowed and restricted as it is by the last deed, nothing seems more natural and probable than that they should be released from this condition.

“Here is a case involving more debateable matter than one-half of those which loiter through two years' preparation, brought to a decision on the merits, after a full argument, within three months after the summons is signeted. Si sic omnia.”

estate of the late Robert Jameson must be regulated exclusively by the holograph deed of 25th October, 1834, unaffected by the codicil annexed on the 16th February, 1833, to the original deed of 8th January, 1831; and therefore finds that the sum of £1200 now in question is to be considered as having been turned into a pure donation by the said holograph deed of 25th October, 1834, and is no longer to be taken into computation in accounting with the defenders for their shares of the said succession; and sustains the defences, and decerns accordingly: Finds no expenses due to either party.”

The trustees reclaimed.