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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Reid and Another v. M'Phedrans [1881] ScotLR 19_51 (1 November 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0051.html
Cite as: [1881] ScotLR 19_51, [1881] SLR 19_51
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[
v.
Process — Proof — Party declining to Lead Proof in respect of Refusal of Commission to Examine a Necessary Witness.
Facts:
A testator executed a general conveyance of his estate to “his beloved friend A. M.,” declaring the conveyance to be under the express condition that should A. M. not by writing under his hand explicitly declare that the property thus taken by him should form part of his own means and estate and descend to his heirs, the children of a brother of the testator who should be alive at A. M.'s death should receive from A. M.'s estate “the full amount of my whole means and estate hereby disponed to him, it being my wish and intention that whatever he may receive in virtue of these presents shall be completely and effectually at my friend's disposal.” A. M. having died, leaving a mortis causa deed bearing to exercise the power thus conferred, by declaring that the estate thus left to him should belong to his own heirs, a niece of the testator raised an action to have the estate handed over to her, on the ground that the deed of testator was invalid to confer more than a liferent on A. M., in respect that it was an attempt to confer on A. M. the power of making a will for another. She concluded also for reduction, if necessary, of the declaration by A. M. Held that the deed of the original testator was merely a substitution under a condition, and that the condition having never come into operation, the pursuer had no right under the will.
Circumstances in which held (diss. Lord Craighill) that a party who had, in consequence of a refusal by the Lord Ordinary to allow a commission to examine an important witness abroad, declined to proceed with other proof, and taken a judgment on the action without such proof, was not thereafter entitled to a fresh allowance of proof.
Andrew Inglis, writer in Greenock, died on 5th October 1849. He was never married. He left a will, dated in 1841, consisting of a general conveyance “to my beloved friend Alexander M'Culloch of Craigbet” of his whole estate, heritable and moveable, “declaring always, as it is hereby expressly provided and declared, that these presents are granted and to be accepted of by my said disponee under this condition and stipulation, that should he not, by writing under his hand, expressly declare that what he may succeed to and receive in virtue of these presents is to form part of his own means and estate, and belong to his own heirs or disponees, then and in that case such of the children of my deceased brother John as may be alive at the time of the decease of the said Alexander M'Culloch, shall receive from his means and estate, or heirs and disponees, the full amount of my whole means and estate hereby disponed to him, it being my wish and intention that whatever he may receive in virtue of these presents shall be completely and effectually at my friend's disposal, and used by him for his own purposes, but that on his death the children of my said deceased brother John shall be entitled to receive from my friend's estate the amount so received, unless my said friend shall, by a writing under his hand, explicitly declare the said children shall have no such claim; and under the condition and stipulation before written, I do hereby nominate and appoint the said Alexander M'Culloch my sole executor and universal intro-mittor with my moveable means and estate, with power to expede confirmation, and all other titles necessary, reserving always my own liferent, use, and enjoyment, and full power and liberty to sell, use, and dispose, of the whole means and estate hereby disponed, and power also to revoke these presents in whole or in part as I may think proper, dispensing with the delivery hereof.” The estate left by Inglis consisted mainly of heritable property in Greenock. M'Culloch was a physician in Greenock who was for many years on intimate terms with Inglis. In 1851 M'Culloch, who was then fifty-five years of age, executed a writing, which after narrating the terms of the will by Inglis, proceeded thus—“And now seeing that it is the will and desire of me the said Alexander M'Culloch that the whole means and estate, heritable and moveable, conveyed to me by the said disposition and settlement, should form part of my own means and estate, and belong to my own heirs or disponees, therefore I do hereby, in exercise
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of the power conferred on me to that effect by the said disposition and settlement, declare it to be my will and desire that the whole means and estate, heritable and moveable, conveyed to me by, or to which I have succeeded in, virtue of the said disposition and settlement, is to form part of my own means and estate, and to belong to my own heirs or disponees, to the exclusion of all others; and I therefore do further hereby explicitly declare that the children of the said Andrew Inglis' deceased brother John shall have no right or claim to any part or portion of said means and estate; but reserving, nevertheless, full power and liberty to me, the said Alexander M'Culloch, at any time hereafter, should I be so disposed, to convey and make over to the children of the said Andrew Inglis' deceased brother John such parts and portions of the heritable estate left by the said Andrew Inglis as may remain undisposed of by me at the time of my decease.” He died without altering this declaration on 27th December 1853. In 1880 Barbara Inglis or Reid, a daughter of the John Inglis mentioned in these writings, brought this action, with consent and concurrence of her husband, against John M'Phedran and Sarah and Margaret M'Phedran, whom she alleged to be M'Culloch's representatives, for reduction of M'Culloch's declaration above quoted, and whether such decree should be pronounced or not, for declarator that she had right to the estates of Andrew Inglis as at and after the date of M'Culloch's death in 1853. Further, she concluded for an accounting of the intromissions of the deceased Margaret M'Culloch and Mary M'Phedran, the defender's predecessors, with the estate of Andrew Inglis from and after M'Culloch's death. She averred that the estate of Andrew Inglis was extant in forma specifica at the date of the death of M'Culloch, and was still extant, and that it consisted chiefly of specified heritable property. This was admitted by the defenders. She also averred that at the time of the execution of the deed of declaration, M'Culloch, who had frequently, when in full possession of his faculties, expressed an intention of taking care that Andrew Inglis' estate should go to the children of John Inglis at his (M'Culloch's) death, was weak and facile, and that the declaration had been impetrated from him by means of undue influence and importunities by the defenders and their predecessors. She pleaded, inter alia—“(1) The deed of declaration by Alexander M'Culloch is invalid and ineffectual to dispose of the heritable and moveable estates of Andrew Inglis, so as to evacuate or defeat the right conferred on the female pursuer and the other children of John Inglis by the settlement of Andrew Inglis. (3) Separatim, By the joint operation of the settlement of the said Andrew Inglis and of the said deed of declaration, the fee and capital of the said Andrew Inglis' estate, heritable and moveable, remain undisposed of, and the same fall to the female pursuer as one of his heirs, next-of-kin, and representatives ab intestato.”
The defenders, besides denying the pursuer's averment as to facility and undue influence, pleaded—“(3) The averments of the pursuer are not relevant or sufficient to support the conclusions of the summons. (5) The deed of 7th January 1851 being a writing under the hand of Alexander M'Culloch, containing an express declaration in terms provided for in the deed of Andrew Inglis, no right exists in the children of John Inglis in or to the succession of Andrew Inglis.”
The Lord Ordinary on 22d February 1881 discharged an order for issues previously made, and fixed a proof for 26th May with regard to the pursuer's averment of facility and impetration. On 19th March he pronounced this interlocutor—“Refuses the pursuer's motion for a commission to examine Charles M. Inglis, a witness for them on the matters set forth in the record, at present resident in Melbourne; and also refuses their motion for leave to reclaim against this interlocutor.” Thereafter on 19th May this interlocutor was pronounced—“In respect counsel for the pursuers states that he does not now propose to lead proof with respect to the averments of condescendence 9 and answers thereto, and having heard counsel, repels the fourth plea-in-law for the pursuers, and finds the defenders entitled to the expenses incurred by the said plea having been stated. Further, on the motion of the pursuers, discharges the order for proof on the 26th May current.”
On 25th June 1881 the Lord Ordinary assoilzied the defenders. He added this note to his interlocutor:—“The pursuers were allowed a proof of the averments contained in the 9th article of their condescendence, and a diet was fixed for the purpose of taking the proof, but pursuers thereafter intimated that they did not propose to lead such proof, and the Lord Ordinary thereupon repelled their fourth plea-in-law, which was founded on these averments.
“The only question, therefore, which now remains in this case is, Whether on a sound construction of the disposition and settlement of Andrew Inglis, of date 8th June 1841, and relative deed of declaration by Andrew M'Culloch, of date 7th January 1851, the pursuers have a right to any part of the estate left by the said Andrew Inglis.
Andrew Inglis, by his trust-disposition and settlement, assigned and disponed his whole estate, heritable and moveable, except as therein mentioned, to Alexander M'Culloch, but under the condition, that should his disponee not by a writing under his hand, expressly declare that what he might succeed to was to form part of his own means and estate, and belong to his own heirs and disponees, then and in that case such of the children of his deceased brother John as might be alive at the time of the decease of the said Alexander M'Culloch should receive from his own estate, or heirs and disponees, the full amount of his (Andrew Inglis') whole means and estate thereby disponed. The disposition and settlement further set forth that it was the testator's wish and intention that whatever the said Alexander M'Culloch should receive in virtue thereof should be completely and effectually at his disposal, and used by him for his own purposes, but that on his death the children of his brother John should be entitled to receive from his friend Alexander M'Culloch's estate, the amount so received, unless his friend should by a writing under his hand, explicitly declare that the said children should have no such share.
Alexander M'Culloch did, by a deed of declaration dated 7th January 1851, being a writing
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under his hand proceeding on a recital of the said disposition and settlement, declare it to be his will and desire that his whole estate to which he had succeeded under the said disposition and settlement was to form part of his own means and estate, and to belong to his own heirs and disponees, to the exclusion of all others, and therefore did explicitly declare that the children of the said John Inglis should have no right or claim to any part and portion of said means and estate. In these circumstances the Lord Ordinary cannot see that the pursuers, who are or claim to represent the children of John Inglis, the testator Andrew Inglis' brother, can have any possible claim to any part of the estate left by Andrew Inglis.”
The pursuer reclaimed, and argued—Under the will of Andrew Inglis, M'Culloch had only a liferent with a power to expend. The destination was not to him and his heirs. It was to him only, and that under a condition that unless he did a certain thing the nephews and nieces of Inglis should succeed. Now, what he was thus empowered to do was to make a will for Inglis, and that was incompetent by law. The intended exercise therefore of that power was bad. A proof should still be allowed of the averments as to the facility of M'Culloch when he executed the deed of declaration (assuming it to be prima facie effectual) and the impetration of the deed by the defenders. The abandonment of the previous opportunity for proof was in consequence of the refusal of the commission to examine an indispensable witness for the pursuer, who was now anxious to obtain such a commission, and this was the first opportunity of doing so.
Argued for defenders—M'Culloch had clearly a right of fee under the will of Inglis. Whatever right the pursuer might have had was not, as the action assumed, a right to claim the estate of Inglis, but only a right to claim against M'Culloch's estate the value of what he had obtained from Inglis so far as not spent. But even that was excluded by the declaration, which was quite in terms of the power lawfully given.
At advising—
This is a peculiar and eccentric will, and not one of a kind which the Court would be anxious to sustain if any good ground of challenge could be made out. But it has now stood for upwards of thirty years without being disputed, and I am not disposed to disturb it except on very strong grounds.
The testator (Andrew Inglis) had an intimate friend (Alexander M'Culloch), and to him left his whole estate in the terms we have before us. There is no reason given for this bequest, but we may assume that there was some good reason. The case falls under a very simple category. It is a bequest under a substitution in favour of third parties on a condition. This condition is a peculiar one, namely, that it was to rest with the donee whether the substitution is to take effect or no—“I give you my estate; it is yours absolutely, but you must make a declaration that you consent to take it, and if you do not I substitute others to the estate which you have taken.” It is not a case of allowing Alexander M'Culloch to nominate the heir of Andrew Inglis. He is allowed to make a declaration that the estate belongs to himself, and if he does so then it becomes absolutely his own. Such a condition is common in the law of legacies. It is a condition just within the power of the legatee, which if he fulfils gives him the subject absolutely.
If nothing had been done by Alexander M'Culloch in the way of making a declaration, and the children of John Inglis alive at his death had been claiming under the non-fulfilment of the condition, it might have been difficult to say whether this substitution could have effect or not, but that has not occurred, and we have not to decide that point.
On the question as to the refusal of the Lord Ordinary to grant the commission asked for, I do not think we should interfere with the Lord Ordinary's discretion.
On the whole matter I think we should adhere.
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I think that the pursuers' contention is extravagant. I know no proposition of law on which it is even arguable. I therefore concur with your Lordship. As to the motion for a proof, I agree with your Lordship as to that also. In a case in which proof was to be led as to the intelligence of a granter of a deed which was executed forty years ago, where the party has been allowed a proof, and then, because a motion for a commission was refused, abandoned his allegation and took a judgment on the case without it, and where the Lord Ordinary has decided that the new allowance of proof he asks ought not to be given, I am not for disturbing the procedure in the Outer House.
As to the allowance of proof, even now there is more difficulty. I am not insensible to the consideration that thirty years have elapsed since the declaration was made. At the same time the facts are, that four weeks after proof was allowed no doubt, but still before the diet of proof arrived, a commission was asked which the Lord Ordinary refused, and he refused leave to reclaim against that interlocutor. In consequence, the pursuer a week before the diet fixed for the proof announced that she would not proceed to proof, the reason being that the witness for whose examination a commission was desired was essential to her case. I think there is no reason for refusing even now an opportunity for leading evidence. Whether or not the pursuer was ill-advised in not going on with the proof, it would be hard that on taking this, the first opportunity of again asking an allowance of proof, the pursuer should be held foreclosed, and dealt with as having abandoned her case on that point on which proof would be indispensable.
The Court adhered.
Counsel for Pursuer— R. V. Campbell. Agent— Thomas Hart, L.A.
Counsel for Defender— J. P. B. Robertson. Agents— Duncan, Archibald, & Cunningham, W.S.