Scottish Court of Session Decisions

Note.—The object of the present action, as stated in article 7 of the condescendence, is to obtain a decision on the question, Whether the late Mrs Tait's deed of settlement, in so far as regards the provisions thereby made in favour of her daughter Mrs Hutchison, was ultra vires, and in violation of the terms of the contract of marriage between Mrs Tait and her husband, Mrs Hutchison's father? If Mr and Mrs Hutchison have agreed, as the objectors allege they have agreed, not to raise this question, it follows that the action must be dismissed.

The parties concurred in stating that the correspondence between the agents, which is produced and referred to by both parties, took place with the full authority of their respective clients.

It is maintained by Mr and Mrs Hutchison that there was no concluded agreement between them and the objectors; because it was stipulated by them that the objectors should, as part of the proposed arrangement, admit that Mrs Hutchison was making a concession in favour of the other members of the family, while this admission has been refused. After consideration of the correspondence, I am unable to adopt this view. It is very clear that Mr and Mrs Hutchison were and are of opinion that in accepting £3000 from Mrs Tait's estate under any conditions, they consent to take a smaller amount than Mrs Hutchison was entitled to have; and the grounds of this view were very fully stated in the correspondence; but it appears to me that an agreement between the parties was concluded without its having been made a condition that Mrs Tait's trustees, who maintained an opposite view, should admit that Mrs Hutchison was in this respect in the right.

(1) In the first place, the letter of 29th November 1873, making the proposal that the £3000 payable to Mrs Hutchison under her mother's deed of settlement should be placed under her own marriage-contract trust, expresses the hope that the trustees will see their way to do so, without asking any admission to the effect that the proposed arrangement is a concession to the other members of the family. The letter plainly states that Mrs Hutchison conceives she had right to an equal share of her mother's estate, and that under the settlement she had not got this; but it is explained, that while she desires to express her disappointment at the unequal division, she will not seek to reduce her mother's settlement, ‘on condition that the £3000, appointed by Mrs Tait's ‘settlement to be set aside for behoof of Mrs Hutchison and her children, shall be paid over to the trustees under her marriage contract.’ No other qualification is made; and if the proposal so made was acceded to without any new condition being introduced, the arrangement was concluded. The letter of 4th November, in answer, appears to me to be an unconditional acceptance of Mrs Hutchison's terms. It is true the acceptance is accompanied by an intimation that the trustees did not admit Mr and Mrs Hutchison's view of their legal rights, and by a long statement, the purpose of which apparently was to satisfy Mrs Hutchison, if possible. that she was not right in thinking she was making a concession; but the letter expressly states, in that part of it which professes directly to reply to the proposal made, that the trustees ‘will agree …. that the sum to be paid to Mrs Hutchison be placed under the marriage trust.’ The expression ‘will agree’ does not appear to me to mean anything different from a present assent to Mrs Hutchison's proposal, or to suggest that any farther approval by Mrs Hutchison is required; but is explained by what follows, as to calling a meeting of the marriage-contract trustees, who are not said to make any difficulty about including the £3000 provision under the trust administered by them.

(2) If, however, there were any sufficient ground for doubting whether an arrangement was concluded by the letter of 4th November, I am of opinion that the subsequent correspondence, ending with the letter of 17th December, constituted a binding agreement. It is true that in Mr Hutchison's letter of 26th November, sent as an enclosure in Messrs Melville & Lindesay's letter of 29th November, there are indications that he requires the trustees to adopt the views of Mrs Hutchison and himself; but it is not clear, even from his letter, that this observation is made except for the purpose of showing that unless this be done there would be an interruption of the ‘former amicable relationships of the family;’ and the view that his true purpose in writing was to remove a feeling of estrangement between the different members of the family, rather than to import a new condition into the agreement of the parties, acquires considerable weight from the fact that in his agents' letter of 29th November there is no statement that any agreement between the parties must now be subject to the condition that the trustees should admit the correctness of his and Mrs Hutchison's views. And even if Mr Hutchison's letter is to be read as admitting of that construction, or being to that effect, the letters of Messrs Cook of 3d December, the answer of 6th December, and Messrs Cook's letter of the same day, which appears to be a reply, but especially the letter of Messrs Melville & Lindesay of 6th December, seem sufficient to show that it was not stipulated so as to be an essential condition of the agreement that the trustees should admit that Mrs Hutchison was making a considerable concession in favour of the other members of the family.

The minute of meeting, an excerpt from which was sent by the objectors' agents with their letter of 17th December, was founded on as showing that the proposed arrangement was not agreed to. If I could hold that matters were still open at that date, and that the proposal of Mr and Mrs Hutchison was made for acceptance only subject to the condition that the trustees should admit the correctness of their views, then I think it is clear that such an admission was refused. But I am of opinion that the trustees had closed with the proposal, as they were entitled to do, without making such an admission; and while the reiteration of the views of the Messrs Tait (previously so fully stated) in the excerpt from the minute appears to have been at once unnecessary and rather calculated to create a feeling of irritation on the part of Mr and Mrs Hutchison, I do not think it affected the concluded arrangement between the parties.”