Scottish Court of Session Decisions

This action of count, reckoning, and payment was brought by a descendant of one of the nephews of the deceased William Gilmour, who was also a legatee under his will, against the representatives of his executrix.

The said William Gilmour, who died in 1823 without children, had executed along with his wife, who predeceased him in 1819, a mutual disposition and settlement disposing of their whole means and estate, heritable and moveable. This deed was dated 1787. In that part of it which bore reference to William Gilmour's own property, the most important clause was as follows:—“And as I have at present sixteen nephews and nieces all equally near of kin, and whether these shall be

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fewer or more at the time of my death, I hereby bequeath to them the remainder of my effects, to each an equal share, to be equally intromitted with, and uplifted by them as soon as they can after my death. And if any of these nephews or nieces are then dead, but have a child or children then alive, that child or children shall draw their deceased parent's share; and said nephews and nieces may appoint a factor for uplifting the money due to me, for paying my debts, and for giving to each nephew and niece their share, and the factor's fee to be paid as parties can agree. And if parties think fit, he may be one of said nephews.” Several codicils were added to this deed by both the parties to it, the latest of which was dated in 1813.

After his wife's death, in 1819, William Gilmour executed a fresh settlement of his heritage, by a deed dated 1st June 1821, in which he divided all his heritable property, including that which had come to him from his wife, to Agnes Gilmour, his niece, and to Robert and William Armour, his nephews.

There was also found in his repositories after his death two holograph but undated deeds, of a testamentary nature, which, from internal evidence, must both have been executed between his wife's death and his own, and subsequently to the deed of 1821, making a new disposition of heritage. They carried his moveable property only. The following are the terms of one of these deeds:—“I, William Gilmour, of Dovecastle, taking into consideration the uncertainty of life, have thought fit to make the following testament; and I hereby appoint Agnes Gilmour of Newhouse, spouse of Mr Robert Clark, to be executor; and she, by the assistance of her husband, will do the business very correctly, universal intromitter with my goods and money, except what is otherwise mentioned afterwards, and that under the following burdens, to pay my debts and the following legacies:—I hereby bequeath to three nieces, Janet, Agnes, and Christian Armours, three hundred and sixty pounds, to be divided equally among them, share and share alike, these three being daughters of the deceased John Armour and Helen Gilmour, my sister-german; and to John Armour, their brother, late a soldier, also one hundred and twenty pounds; to the eight children of the deceased Andrew Armour, my nephew, four hundred pounds, to be divided equally among them; and if any of these children dies before majority, the shares of the deceased shall be divided equally among the survivors, and to the children, Matthew Armour, Robert and Helen Armour, fifty pounds to each of them; to the children of the deceased Matthew Armour, Robert and Helen Armours, fifty pounds to each of them: and to the children of the deceased Barbara Armour, John and Robert Pumphrays, fifty pounds to each of them; and to blind William Pumphray seventy pounds, and the children of the deceased Helen Pumphray, when they arrive at majority, fifty pounds, divide between her two children; and to Jean Brown, my grandnephew, spouse of John Henderson, and to Helen Brown, her sister, seventy pounds; to Helen Brown seventy pounds; and to said Jean Brown, her sister, fifty pounds; and to Lilias Marshall sixty pounds; and to William Sym of Flatt, the same relation to my mother, fifty pounds; and to William Armour twenty pounds, to assist him in entering with the superior of Priestgill—these all sterling money, and payable at the first term of Whitsunday or Martinmas that shall be six months after my death.

1, 1, 1, 5, John Steven.

William Lindsay, 1, 1, 1, 30, John Steven, 200. These last named sums due by John Steven and William Gilmour to be paid to the executor, that they may divided to the legatees as well as the rest, being part of the sums which are to be given to the other legatees.

(Signed) Will. Gilmour.”

The other deed was in much the same terms, though the legacies left by it were fewer in number. It was as follows:—“I, William Gilmour of Dovecastle, taking into consideration the shortness of human life, I hereby appoint Agnes Gilmour, spouse of Mr Robert Clark, to be executor of this my testament, who, with the assistance of her husband, will do the business very correctly; and I appoint her to be universal intromitter with the whole good and gear except what shall be otherways appointed, and that under the following burdens; and I hereby bequeath to my four nephews and nieces Four hundred and four pounds, their names being Janet, Agnes, Christian, and John Armours, children of John Armour and Helen Gilmour, my sister, share and share alike. To the eight children of Andrew Armour, deceased, Four hundred pounds, to be divided among them, share and share alike, and if any of them dies before payment, the dead's part to be divided as the rest. And to the deceased children of said Matthew Armour deceased, to wit, Robert and Helen Armours, Fifty pounds to each of them; and to the deceased Barbara Armour's children, John and Robert Pumphrays, fifty pounds to each of them; and to William Pumphray, blind, ninety pounds; and to Jean Brown, spouse to John Henderson, my niece, fifty pounds; and to Helen Brown, her sister, seventy pounds; and to William Armour twenty pounds sterling, to assist him in his entry with the superior of Priestgill. To Elizabeth Yuil, my servant, five pounds. All these sums sterling money, and payable at the first term that shall be six months after my death; and as some of the legatees have given bills for sums which they have received, these may be turned in payment of the legacies so far as they go. As to my cloths, books, and plenishing, harrow, spade, ax, and other tools, to be divided among the friends; if they cannot do this business themselves, they may chuse a man to do it. (Signed) Will. Gilmour.

Poor people, when they get a legacy or any gift, are often in a great hast to get it ended, the they have often much reason to regret their hast.”

On 28th March 1823, shortly after his death, the repositories of Mr Gilmour were opened in presence of his relatives, and the deeds above mentioned found. The minute of meeting, which was formally drawn out, bears as follows;—“Besides the foregoing writings, no other settlement, latter will, or other deed of a testamentary nature was found. The foregoing writings were delivered over to Mr Clark (the husband of Agnes Gilmour, the testator's niece, who had been named executrix by the undated testaments) in order that he might put the same on record for preservation, and which he engages to do. But it is understood and declared that the right of all parties concerned are reserved entire, and noways prejudged or injured by the recording of said writings. The other papers found in the repositories were replaced, and the repositories were

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afterwards sealed up by the said William Dykes, as judge, in presence of parties interested.

“The parties interested agree to adjourn further examination of the repositories till Monday next at eleven o'clock forenoon.”

Another meeting of the relatives and parties interested in Mr Gilmour's settlement was held on the 9th April following, in which Mr Clark and his wife Mrs Agnes Gilmour or Clark took up the position that the moveable succession of the deceased William Gilmour was to be regulated by one or other of the two undated holograph deeds, which appointed Mrs Gilmour or Clark executrix and universal legatory, after satisfying the special legacies therein bequeathed. But wishing to behave liberally by the relatives of Mr Gilmour, they intimated that they had determined to give effect to both of these holograph undated deeds, so far as to omit no person to whom a legacy had been given in either, and to give each a choice which deed he would take under. The minute of this meeting bore that all the deeds were read over and explained to the meeting, particularly to that effect that the two first-mentioned testaments so far differ as that one of them omits the names of some relations mentioned in the other as legatees, while the other deed, omitting these names, appoints a division of the books and plenishing. “And Mr Clark stated, that although it was optional by law to Mrs Clark to select which of these two undated testaments she thought proper, yet it was her intention to act liberally towards the relatives, and that while she would include the names of said omitted relatives as entitled to their legacies, she would be also disposed, after selecting some particular articles, which in point of fact Mr Gilmour had gifted to her before his death, to make a reasonable division of other effects as recommended by the other testament, or pay an equivalent sum corresponding to the apprised value.”

Upon this footing Mrs Clark entered upon her office of executrix. She was regularly confirmed executrix, and gave in an inventory amounting to £8749. She paid the different legacies bequeathed by both of the undated holograph deeds, and in 1826, having realised all the estate, she gave in an account of residue amounting to £7424, “being the amount of the said residue and monies which I am entitled and intend to retain to my own use as executrix and residuary legatee of the deceased, being descendant of a brother of the deceased.” Upon this residue she paid duty at the usual rate.

Mrs Clark died in 1845, and at the date of this action was represented by the defenders, John Clark, her son, and George Espie, her grandson, the son of her deceased daughter Jane Clark.

Among the legacies which Mrs Clark paid in 1823 was one of £50 to Helen Armour or Jamieson, the pursuer's mother, a daughter of Andrew Armour, one of the sixteen nephews and nieces of the testator. This legacy was duly discharged by Mrs Armour or Jamieson and her husband.

The pursuer in the present action was John Jamieson, a son of this Helen Armour or Jamieson, and executor qua next of kin confirmed to his said mother. He brought this action of count, reckoning, and payment against the defenders Mrs Clark's representatives, on the footing that Mrs Clark was executrix merely and not residuary legatee, and that the two undated holograph deeds were only codicils to the original settlement of 1787, and did not annul it; that she was therefore bound to account for the whole residue, and he accordingly claimed the share which he was entitled to as his mother's executor under the said deed of 1787.

The summons was signeted 4th November 1870.

The pursuer pleaded—“(1) The foresaid disposition and settlement and relative codicils by the said William Gilmour were not recalled by either of the said undated testamentary writings, and the moveable estate left by him fell to be disposed of at his death under and in terms of the whole of the said settlements and testamentary writings executed by him. (2) The said Andrew Armour had right, as one of the nephews and next of kin of the testator, to a 1–13th share of the free residue of the estate of the said William Gilmour under the said settlements, and also to 1–208th of said residue, being 1–12th of 3–4ths of the share originally destined to the said Lillias Marshall or Steel; and the pursuer has now right, as the executor-dative of the said Mrs Helen Armour or Jamieson, to 1–7th of the said Andrew Armour's share of the said residue. (3) the defenders, as the representatives and next of kin and intromitters with the estate and effects of the said Mrs Agnes Clark, the executor-nominate under the said testamentary writings, and the said Robert Clark, her husband, are bound to account to the pursuer for the intromissions of the said Robert Clark and Mrs Agnes Clark with the estate and effects of the said William Gilmour, and to make payment of the share of the residue of the said estate to which he has right as aforesaid.”

In defence against this action the defenders pleaded—“(1) The pursuer's mother having received payment of her whole interest in the succession of the said William Gilmour, the pursuer has no title to sue this action. (2) The averments of the pursuer are irrelevant, and insufficient to support the conclusions of the libel. (3) In the circumstances stated, and upon a sound construction of the foresaid two undated testamentary writings, the moveable succession of the deceased was exclusively regulated by the said two writings, or one or other of them. (5) The said claims were discharged by the pursuer's mother, and the same are now barred by said discharge, and by mora and taciturnity.”

But the plea ultimately sustained was—“(4) The claims of the pursuer have, in any view, been extinguished by the negative prescription.”

The Lord Ordinary ( Mure) pronounced the following interlocutor:—

27 th July 1871.—The Lord Ordinary, having heard parties' procurators, and considered the closed record, proof adduced, and productions, with the joint minute of admissions,—finds that the right of the pursuer to enforce the claim made under the present action is cut off by the negative prescription; therefore, and to that extent, sustains the defences, and assoilzies the defenders from the conclusions of the action, and decerns.”

After narrating the circumstances already detailed, his Lordship proceeded in his Note as follows:—“It is in these circumstances that the present action has been brought, forty years after the date when the executry accounts were settled, and the estate realised, and the balance of the residue, after payment of the legacies appropriated, as alleged by the pursuer, by the executrix to her own uses and purposes. To this demand various defences have been stated, but the two mainly insisted in before the Lord Ordinary were—1st, that the claim was excluded by the negative prescription; and 2d, even if that were not so,

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that upon a sound construction of the undated testamentary writings the moveable succession of the deceased fell to be regulated by them, as the heritable estate did by the deed of 1821, inasmuch as these three deeds, taken together, operated as a recal or revocation of the deed of 1787, by disposing of the universitas of the estate; and it was further pleaded that the pursuer's claims were barred by the discharge granted by his mother, and by her mora and taciturnity.

1 st, With reference to the last of these defences, and assuming the claim not to be met by the negative prescription, the Lord Ordinary, as at present advised, does not think that there are in the circumstances of the case materials to warrant him in giving effect to it. Because there is no evidence to show when the pursuer's mother died, or that she ever was aware that there was any other will than that under which her legacy was paid. Neither does it appear at what precise time the pursuer himself became aware of the existence of the deed of 1787; all that is proved is, that it was known to some of the family about 1839, when the pursuer was not of age, that such a deed had been executed; but it does not appear that he himself was then made aware of its existence. And in the absence of any distinct proof on this point, the Lord Ordinary is disposed to hold that the plea of mora and taciturnity cannot be maintained.

2 d, But upon considering the authorities, he has come to the conclusion that the plea of prescription constitutes a good defence against the present claim. The statutes by which the negative prescription was introduced, and under which it has been regulated, have for long been construed to apply to almost every species of claim or ground of action which has been allowed to lie over without being insisted in for forty years.—Stair, II. 12, 11, and 12, and More's Notes; Bankton, II. 12, 18; Erskine, III. 7, 8. In particular, they have from an early date been held to apply to the case of a claim under a testament, Lindsay, June 19, 1627, M. 10, 718, ‘albeit,’ as the report bears, ‘the Acts mentions only prescription of obligations, and this title was a testament whereto the pursuer alleged these Acts could not extend.’ And in the more recent case of Briggs, Jan. 24, 1854, although the interlocutor of the Lord Ordinary finding the claim against the executor prescribed, was altered on the ground that the prescription had been interrupted, no doubt seems to have been thrown on the general doctrine that a claim against executors or general representatives might in the ordinary case be cut off by the negative prescription.

The Lord Ordinary has carefully examined the case of Burns, March 5, 1857, relied on by the pursuers, but he has been unable to find that it in any respect derogates from the weight of these and other authorities. The case of Lindsay is, on the contrary, distinctly recognised as an authority in disposing of the case of Burns; while the later case of Kinloch, 27th May 1800 (M. App. ‘Prescription,’ No. 4 and 7), is referred to and adopted by the Lord President as deciding in regard to trust-funds ‘which had been recovered or possessed beyond the forty years that the obligation to compel the application of them to trust-purposes had been lost.’ Now, the decision in the case of Kinloch appears to the Lord Ordinary to have a direct bearing upon the present case. For it was there ruled that when a disponee in trust, who had been directed to invest funds in the purchase of land to be entailed, had realised those funds beyond the forty years, but neglected so to apply them, and mixed them up with his general estate, his representatives could not, after the lapse of forty years, be called on to account for them; and substituting the misapplication of residue for the misapplication of trust-funds, the cases appear to the Lord Ordinary to be in principle substantially the same, inasmuch as what is here complained of is the failure to divide among residuary legatees funds realised by the defender's predecessors upwards of forty years ago, which might have been made the subject of action by any of the numerous beneficiaries alleged to be injured by that transaction at any time since the year 1823.

3 d, The question whether the undated testaments operates a revocation of the deed of 1787 in regard to moveables, depends, in the view the Lord Ordinary takes of it, upon whether these testaments, or either of them, can be held to constitute Mrs Clark ‘universal legatory’ or ‘residuary legatee’ of the deceased?—Erskine, iii, 9, 6; Menzies' Lectures, p. 465. If they do, they are then quite inconsistent with the provisions of the deed of 1787 relative to the disposal of residue, and the case would then fall within the rules applied in Sibbald's Trustees, 13th Jan. 1871. The usual style of a will, where a testator leases his moveable estate to one executor, under burden of debts and legacies, is to nominate the party ‘sole executor and universal legatory,’ with power to intromit with the estate; Styles, ii, p. 433, 3d ed. Now, although the expressions here used are somewhat different, they rather appear to the Lord Ordinary to amount substantially to such a nomination, and to indicate an intention on the part of the testator to bequeath his whole moveable estate to his niece Mrs Clark, under burden of the legacies mentioned, which is just another way of making provision for the residuary legatees of the deed of 1787; and if that be so, there was no misappropriation of the funds. But, as upon the assumption that there was misapplication as alleged, the Lord Ordinary is of opinion that the negative prescription applies, he has disposed of the case upon that prejudicial ground.”

Against this interlocutor the pursuer reclaimed.

Watson and Maitland for him.

Solicitor — General and Mackintosh for the respondents.

At advising—