Scottish Court of Session Decisions

This was an appeal in an action in the Sheriff Court of Perthshire, at the instance of James Buchanan against his brothers Thomas Buchanan and Walter Buchanan junior, trustees and executors-nominate of their father, the deceased Walter Buchanan. The summons concluded that the defenders were bound to count and reckon to the pursuer for the amount of the personal estate which belonged to the deceased Walter Buchanan at his death, and to make payment to the pursuer of the share thereof due to him as legitim.

The defence was, that Walter Buchanan senior had during his life paid to the pursuer advances equal to the share to which he would otherwise have been entitled at his (Walter Buchanan's) death, and that he had divided the whole of the remainder of his estate among his children Walter Buchanan junior, and Elizabeth and Isabella Buchanan.

The defenders pleaded—“(1) The said Walter Buchanan having absolutely denuded himself of and paid away his whole personal estate during his life, his trustees and executors are not liable to account therefor; and separatim, not having intromitted therewith, no liability attaches to them qua trustees or otherwise. (2) The said Walter Buchanan having divided said personal estate among his said children, the said Walter Buchanan junior, Elizabeth, and Isabella Buchanan, before his decease, no claim thereon can in the circumstances be set up by the pursuer. (3) The pursuer having received from the said Walter Buchanan during his lifetime several sums on account of his patrimony, equal to, if not exceeding, his legal share of his father's estate, he is barred from claiming legitim or any other right which might have been competent to him. (4) The defender, the said Walter Buchanan junior, is bound only to pay to the pursuer the proportion of the share of said personal estate received by him required to give the pursuer an equal share with the other children in the event of his being found entitled thereto, and that only on his producing confirmation.”

On a proof it appeared that the pursuer's father had for a number of years carried on business as a merchant in Callander, and that in the year 1861 he retired from business, having realised a considerable sum of money—the division and ultimate possession of which became the cause of much ill-feeling among the different members of the family, and especially between the pursuer on the one hand, and the defenders and their sister Isabella on the other. Both parties attempted to obtain influence over their father with reference to the possession of his money, and in 1867 Thomas and Isabella obtained the regulation of their father's affairs. The father had in 1859 executed a trust-disposition and settlement, and in 1869 Thomas and Isabella seemed to have resolved that their father should at once divest himself and dispose of his property so as to leave only a small amount which would fall to be distributed in terms of the settlement. In the month of August 1869, accordingly, the father paid over £1000 to the defender Thomas Buchanan, who at the same time granted three I O U's in favour of Elizabeth Buchanan for £400, and in favour of Isabella and Walter junior for £300 each. The £1000 was composed of a debt of £700 due by Thomas to his father, and £300 lying in bank in the father's name. Isabella gave the following account of the transaction:— “In the spring of 1869 my brother Andrew died. Previous to his death my father had (I knew) made a settlement. In consequence of his death, and in anticipation of some disturbance with my brother James, my father resolved either to make a codicil or divide his estate. He spoke to me about it. He resolved not to make a codicil, but to divide his personal estate among his children who had not already got their shares. He—said, ‘I was at a loss how to deal with Thomas. He has paid back all he ever got from me, and he has now more than me, and I have no right to deprive him for his well doing.’ My father added that Thomas had ‘relieved him, for he would not seek anything.’ He said at that time that James had already got his full share. This conversation took place in Thomas' shop. Thomas, Walter, and I were present. At this meeting the first thing done was to settle with Thomas, who paid up the £700—my father writing the receipt No. 16. There was nothing more done that day, but a day or two after that my father came again to the shop with £1000, which he said was all he had, and that he thought it would be better to give the £1000 to Thomas to keep and put out to interest on behalf of the rest of us. At the same time Thomas, at my father's request, granted an I O U in favour of Elizabeth Buchanan for £400, and an I O U in favour of Isabella Buchanan for £300, and also an I O U in favour of my brother Walter for £300. … I did not see any money paid. My father spoke about it not being necessary to pay legacy-duty in consequence of the division he was making. I saw my father give £300 to Thomas on the day that the I O U's were written out. I cannot say that I then saw the notes of the £700 that my brother Thomas had got from my father. I knew when the I O U's were written out that I was to get a share under my father's settlement of the rents of his heritable property. I did not keep my I O U, but at once gave it back to my father to keep, as he wished.”

The defender Thomas Buchanan deponed as follows:—“My father at the time of division asked me to write out the I O U's, and he told me what names and sums to put in them. I

Page: 354↓

wrote them, and handed them to my father, and then he handed them to Isabella, who gave them back to my father, who handed them across the counter to Walter, who finally returned them to my father. They were then all on one sheet of paper. The I O U's were all on a single sheet till after my father's death, when they were separated.”

The I O U's were in the possession of the father at his death, being found in a box in which he kept his titles and other documents, and which box was given by him to his daughter Isabella a short time before his death, but for safe custody only.

The Sheriff-Substitute ( Grahame) pronounced he following interlocutor:—

“ Dunblane, 2 d April 1875.—Having heard parties' procurators on the closed record, proof, and whole cause—Finds, in point of fact, that the late Walter Buchanan, merchant, Callander, died on 12th May 1870, survived by three sons and two daughters, of whom the pursuer James Buchanan is the eldest son; That by trust-disposition and settlement, No. 9 of process, dated 16th June 1859, the said Walter Buchanan conveyed to the defenders and their brothers Andrew and John Buchanan (now deceased) his whole estate, heritable and moveable, for the purposes of division, as therein set forth, among his wife and children; That the defenders are the surviving trustees under said deed, and that, in particular, the defender Thomas Buchanan, with the consent and authority of his brother Walter, the other defender, acted as trustee under said deed, drawing rents and otherwise intromitting with the estate of his late father; That the pursuer is not proved to have received from his father any payment of money due to him as patrimony from his father's estate; That the pursuer repudiates said trust-disposition and settlement, and now insists in his claim to one-fifth part of the legitim of his father's estate; That in August 1869, about nine months previous to his death, the said Walter Buchanan is proved to have paid over to the defender Thomas Buchanan the sum of £1000, and that it is not proved that the said Walter Buchanan was then possessed of any other personal property; That at the date of the said Walter Buchanan's death his whole personal estate consisted of a half-year's (less three days') rent of his heritable property, amounting to £17, 16s. 3d., £10 in cash (in the possession of his widow), and £10, being the appraised value of the furniture belonging to him in the house in which he died—in all £37, 6s. 3d., and which, under deduction of £10 for his funeral expenses, leaves £27, 6s. 3d. as the total amount of his personal estate, subject to any claim for legitim: Finds, in point of law, that the pursuer, as one of his father's five surviving children, is entitled to a fifth part of the legitim of his father's estate, and which fifth part amounts to £1, 16s. 5d.; That the defenders, as acting trustees under said settlement, and as having intromitted with their father's estate, are properly called into Court in that character under the present action, and liable to account to the pursuer for legitim; Therefore decerns against them jointly and severally, as trustees foresaid, to make payment to the pursuer of the said sum of £1, 16s. 5d. as the legitim to which he is entitled, with interest thereon at the rate of five per centum per annum from six months after the date of the said deceased Walter Buchanan's death till payment: Finds the pursuer entitled to expenses of process, in so far as caused by the defenders' plea that the pursuer's claim for legitim was excluded by previous payments to him of his patrimony out of his father's estate; but otherwise, and in respect of the large amount claimed by the pursuer, and of the very small sum to which he has been found entitled as legitim, finds the defenders entitled only to modified expenses, of which expenses allows accounts to be given in, and when lodged remits the same to the Auditor of Court to tax and report, and decerns.”

On appeal the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 17th June 1875. — The Sheriff having considered the reclaiming petition and answers, and whole process—Sustains the pursuer's appeal, and recals the interlocutor appealed from in so far as it finds, in August 1869, about nine months previous to his death, the said Walter Buchanan is proved to have paid over to the defender Thomas Buchanan the sum of £1000; and also the subsequent findings in the interlocutor; and in place thereof, finds that on the 7th August 1869 the said deceased Walter Buchanan paid to the defender Thomas Buchanan the sum of £1000, receiving from him in return three I O U's for the sums of £400, £300, and £300 respectively, in favour respectively of Elizabeth, Walter, and Isabella Buchanan: Finds that the said sum of £1000 was the property of the said deceased Walter Buchanan, and that no part of it was the property of the said Elizabeth, Walter, or Isabella Buchanan: Finds that the said I O U's were in possession of the said deceased Walter Buchanan at the time of his death, and that it is not proved that they were ever delivered to the said Elizabeth, Walter, or Isabella Buchanan respectively: Finds, therefore, that the said sum of £1000 formed part of the deceased's personal estate at the time of his death, and that the defenders, as his trustees, are bound to account for it, with interest at the rate of five per cent, from the said 7th August 1869 to the date of the deceased's death: Finds that at the date of the said Walter Buchanan's death the fund subject to legitim consisted of—(1) the said sum of £1000, with interest as aforesaid; (2) a half-year's rent of his heritable property, amounting to £17,10s.; (3) £10 in cash; and (4) £10, being the appraised value of the furniture belonging to him in the house in which he died: Finds that it is not proved that the defenders have been unable to realise any part of the said sums, or that any delay or expense was incurred in the realisation thereof: Finds, in point of law, that the pursuer, as one of his father's five surviving children, is entitled to legitim of his father's estate, and that the same amounts to one-fifth of a third of the foresaid sums, with interest at the rate of five per cent. per annum from the date of the said Walter Buchanan's death, and appoints the pursuer to lodge in process a state showing the amount due to him on the footing of the foresaid findings being correct, and for which amount he will be entitled to decree: Finds the pursuer entitled to expenses; allows an account thereof to be lodged, and remits to the Auditor to tax the same and report: Quoad ultra adheres to the interlocutor appealed from, and decerns.”

“ Note.—The Sheriff cannot concur in the

Page: 355↓

judgment of the Sheriff-Substitute in so far as regards the sums of £400, £300, and £300, contained in the three I O U's, dated 9th August 1869. These I O U's bear to be granted by the defender Thomas Buchanan in favour respectively of Elizabeth Buchanan, the defender, Walter Buchanan, and Isabella Buchanan. It is clear, and in fact is not matter of dispute, that the money in respect of which these I O U's were granted by Thomas Buchanan, the debtor in these obligations, was the money of the deceased Walter Buchanan. It is also clear that these documents were in possession of the deceased at the time of his death. They were contained in a box in which he kept his titles and other documents, and which box was given by him to his daughter Isabella a short time before his death, but for ‘safe custody’ only. The Sheriff thinks that there is no evidence that the deceased ever delivered the I O U's to Elizabeth, Walter, and Isabella Buchanan respectively. He thinks that the deceased was in possession of them at the time of his death, as being his own property, and not in any sense as holding them on their behalf.

In this state of the facts the Sheriff is of opinion that the deceased never divested himself during his life of his right to the sums in question. Upon proof of these facts the Sheriff does not doubt that the deceased would have been entitled during his life to recover these sums from Thomas Buchanan, the debtor in the obligations. On the other hand, he does not doubt that an action at the instance of Elizabeth, Walter, and Isabella Buchanan, to have their father, the deceased Walter Buchanan, ordained to deliver up to them respectively these I O U's, must have failed, in respect that until delivery they had no right either to the documents or to the sums contained in them. If this be so, the sums in question were in bonis of the deceased at the time of his death, and must be accounted for by his trustees.

The fund for legitim consists of one-third of the moveable estate as realised, subject to deduction of a proportion of the expense of realisation, with interest from the date of realisation. In this particular case the whole of the estate seems to have been in possession of the defenders themselves, and there appears to have been no delay, loss, or expense in the realisation thereof; and the Sheriff has therefore given interest from the date of the death.

if the Sheriff's judgment be well founded, it would rather appear that the pursuer would have been entitled to a larger sum under the trust-disposition than he will receive as legitim.”

The defenders appealed to the Court of Session.

Authorities— British Linen Co. v. Martin, &c., 8th March 1849, 11 D. 1004; Keddie v. Christie, 24th Nov. 1848, 11 D. 145; Little v. Little, 28th Feb. 1856, 18 D. 702; Collie v. Paris' Trustees, 22d Jan. 1851, 13 D. 507, Bell's Prin. 1584; Hill v. Hill, 1755, M. 11, 580; Hog v. Lashley, July 1804, 4 Paton App. 581; Cruikshanks v. Cruikshanks, 10th Dec. 1853, 16 D. 168; Watt's Trustees, &c., 1 July 1869, 7 Macph. 930; Cuthill v. Burns, 20th March 1862, 24 D. 849; Morris v. Riddeck, 16 July 1867, 5 Macph. 1036; Wright's Trustees, &c.,15th March, 1870, 8 Macph. 709.

At advising—