Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0111.html
Cite as: [1866] SLR 1_111, [1866] ScotLR 1_111

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SCOTTISH_SLR_Court_of_Session

Page: 111↓

Court of Session Inner House Second Division.

1 SLR 111

Finlay's Trustees

v.

Alexander and Others.

Subject_1Assignation
Subject_2Intimation.

Facts:

No formality is required in intimating an assignation, and an assignation held to have been duly intimated to a party in respect she accepted and acted as a trustee, to which office she was nominated by the deed containing the assignation.

Headnote:

This is a question between Mr John Miller, accountant in Glasgow, trustee on the sequestrated estate of John Finlay, Printseller, and carver and gilder in Glasgow, and the accepting and surviving trustees nominated in the marriage contract between Mr Finlay and his wife, who is a daughter of the late Mr Alexander, proprietor of Dunlop Street Theatre, Glasgow. This contract of marriage, which was postnuptial, conveys to the trustees therein named every debt due to Mrs Finlay, and in particular “all right, title, and interest which she or the said John Finlay, her husband, now has or may hereafter have in the succession or estates, heritable or moveable, of her father the said deceased John Henry Alexander.” Mr Alexander, two days before his death, and on 13th December 1851, executed a last will and testament by a notary-public, in presence of two instrumentary witnesses, and by that deed he appointed his widow, Mrs Alexander, to be his sole executrix and universal legatory. Two months before Mr Alexander's death, and on the 28th February 1852, Mr and Mrs Finlay, having been previously married in 1845, entered into the post-nuptial contract which contains the assignation above quoted. Immediately after the execution of the contract, and on the 29th February 1852, the trustees nominated accepted of the trust by a minute endorsed on the deed in the following terms—“We, the trustees within named and designed, do hereby accept of the office of trustees.” (Here follow the signatures, among which is that of Mrs Alexander, the executrix of her husband.) In July 1852 the Theatre-Royal in Dunlop Street was let to Mr Glover by Mrs Alexander, the liferentrix, and in the lease the trustees under Mr and Mrs Finlay's marriage contract were made parties. The contract was recorded in the Books of Council and Session on the 7th of December 1857. The question between the parties in these circumstances is, whether the assignation in the marriage contract was effectually intimated to Mrs Alexander. The Lord Ordinary (Kinloch) found that it was, holding that the minute endorsed on the deed was an acknowledgment of intimation. To-day the Court adhered.

Judgment:

The Lord Justice-Clerk said—As this question is presented to us by the note of the Lord Ordinary, it appears to me very simple and unencumbered by specialties. Although we have had a good deal of reference to the affairs of the late Mr Alexander, I do not see that we get any benefit from it. The real question at issue is the subject of the last finding of the Lord Ordinary, whether the assignation contained in the post-nuptial contract was effectually intimated to Mrs Alexander as the executrix of her husband. It is necessary to look at the terms of the assignation, not because I should be disposed to say that an assignation couched in ambiguous terms cannot be effectually intimated, but I look to its terms for the purpose of seeing (1) whether Mrs Alexander was the proper person to receive the intimation as debtor; and (2) how it ought to be made. The assignation which Mrs Finlay and her husband, not only with his consent, but he being cedent, made, was of all right, title, and interest which she had in the succession or estate of her father. There is no doubt whatever that so far as this is a claim against the moveable estate of the lady's father it is a claim against Mrs Alexander as his executrix. I can understand that there might be doubts as to the precise nature of the claim. I can understand that there might even be doubts as to whether it existed at all; but such as it is, it is a claim against Mrs Alexander as executrix of her husband; and I don't understand that there is any difficulty in intimating the assignation to her. It is said that the parties made no intimation because they had not a claim of legitim. But if they had not a claim of legitim they had nothing. Mr Alexander left a testament

Page: 112↓

in which he appointed his wife his executrix and universal legatory. Now this might be misunderstood. It might be thought that everything was given to the widow, and in that case there would be no claim. But, as rightly understood, it is a testament not interfering with the legitim. The claim of the spouses was good, and that was the claim assigned in the post-nuptial contract. Mrs Alexander, I think, was the proper debtor; and the question is whether the assignation was properly intimated to her. It was not intimated by notarial instrument, but that is not surprising for two reasons—(1) because that form of intimation is uncommon; and (2) because the parties to the assignation were in immediate personal contact with Mrs Alexander—she being one of the trustees to whom the assignation by the spouses was made, It is not contended that, being one of the trust assignees, the assignation did not require to be intimated to her. Her being so was not equivalent to intimation. But what follows? She and the other trustees, by a writing on the back of the postnuptial contract, and prior to the 7th of December 1857, intimated their acceptance of the office, and on that they proceeded to discharge their duties; and in particular, in reference to the lease of the theatre, Mrs Alexander concurs in granting that lease; and why? One reason was because she was the executrix of her husband, and another reason was because she was one of the trust assignees. She had nothing to do with the heritable estate of Mr Alexander. She had with the personal estate; and it is a fair inference that, representing the moveable estate as executrix, and also acting under her fiduciary character as a trust assignee she concurred in granting that deed. It is therefore quite impossible to say that the assignation was not intimated. No doubt, if anything technical were required in intimation, difficulties might be raised, because the intimation is not direct. But there is nothing technical in the law of intimation, and there is nothing more satisfactory as an equipollent to notarial intimation than evidence that the assignation was known to the party to whom intimation ought to be made, and we have that here in what Mrs Alexander did.

The other Judges concurred.

Counsel:

Counsel for Finlay's Trustees— Mr Gordon, Mr Gifford, and Mr Arthur. Agents— Messrs R. & R. H. Arthur, S.S.C.

Counsel for Mr Miller—The Lord Advocate and Mr Pyper. Agents— Messrs Gibson & Tait, W.S.

Counsel for Mrs Alexander's Trustee—The Solicitor-General and Mr Shand. Agents— Messrs Webster & Sprott, W.S.

Counsel for other parties— 1Mr Lamond.
1866