Scottish Court of Session Decisions

This was a competition arising in a multiplepoinding brought by the testamentary trustees of the late James Scott, Plevna, Newmains, who died on 4th March 1901, as pursuers and real raisers. The fund in medio was the amount due by the trustees to the children of the deceased as legitim. Claims were lodged (1) for John Scott, the eldest son of James Scott, and (2) for the other children of James Scott, four in number.

The claimant John Scott claimed to be ranked and preferred to the extent of one-fifth of the fund in medio.

The claimants the children of James Scott other than John Scott claimed to be ranked and preferred to the whole fund in medio. They maintained that the claimant John Scott had discharged his claim to legitim during his father's lifetime.

In support of this contention they founded on the following document—“ Newmains, 2nd November 1897.—Having received and had expended for me much more than my share, I renounce all claim to any share in whatever effects or money my father may leave at his death.— John Scott.”

This document was admitted to be holograph of the claimant John Scott.

The claimant John Scott, with regard to this document, maintained (1) that upon a sound construction thereof his right to legitim was not discharged thereby, and (2) that it was not effectual as having been granted as the claimant's part of an arrangement between him and his father which was not carried out, and also as having been granted under essential error.

In support of the second of these contentions the claimant made the following averments:—Statement 3. “The claimant received no money from his father beyond a few presents of small sums from time to time. … Some years before his death the truster frequently expressed himself as desirous of assisting the claimant to make a start for himself in business. On or about 2nd November 1897 the truster, at an interview with the claimant, discussed this proposal with him, and asked the claimant whether he would be willing to grant a document in the terms of the document above referred to if the truster provided him with capital to commence some business. No particular business was at the time in view, but this claimant expressed his willingness to do so. It was at this interview that the document was written and signed by the claimant at his father's request. The proposal as to starting the claimant in business was not, however, carried out, and the claimant received no capital or other funds from his father. The said writing was not intended to be acted upon unless the truster carried out his said intention. If, and in so far as it purports to discharge his legal claims, the said writing was obtained from the claimant in ignorance of his right to legitim and of the position of his father's estate, and under essential error. The said writing states, contrary to the fact, that this claimant had received and had expended for him more than his share. Even including sums spent upon his education the total sums received by him from his father would not exceed £100, whereas his share of the legitim fund amounts to £1400 at least.”

The claimants the children of James Scott maintained that these averments were irrelevant, and separatim could only be proved by writ or oath.

Argued for the claimant John Scott—1. The document founded on did not discharge this claimant's right to legitim. A discharge of legitim to be effectual must be express, and was not to be implied. A discharge of all that the child can claim at his father's death was not sufficient. “Legitim or bairn's part of gear’ must be mentioned expressly as the claim which was discharged—Stair, iii. 8, 45; Ersk. iii. 9, 23; Marquis of Breadalbane v. Marchioness of Chandos, January 20, 1836, 14 S. 309, 2 S. & M'L. 377; Keith v. Keith, July 17, 1857, 19 D. 1040; Crellin v. Muirhead's Judicial Factor, November 16, 1892, 20 R. 51, 30 S.L.R. 72; Clark v. Burns, January 27, 1835, 13 S. 326. If anything was discharged here it was the son's right to a share of dead's part. At least the words used were satisfied by reading them as referring to dead's part and in dubio they must be read as referring to dead's part rather than to legitim. 2. This claimant

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was entitled to a proof of his averments with regard to the considerations in view of which, and the circumstances and the suppositions under which the discharge was signed and delivered— Ross v. Mackenzie, November 18, 1842, 5 D. 151. [The Lord Ordinary referred to Fowler v. Mackenzie, March 15, 1872, 9 S.L.R. 379, affd. 11 S.L.R. 485]. That case showed that parole proof of such facts as were here averred was competent.

Argued for the claimants the children of James Scott other than John Scott—1. The document founded on was sufficient and effectual to discharge the other claimant's right to legitim. It might be the case that a discharge of legitim must be express, but what was desiderated was an express discharge—Stair and Ersk. loc. cit.; Breadalbane, cit., and Keith, cit. Here unquestionably there was a discharge of something. The question then was what did he discharge? He discharged all claims. The only thing which he could claim at his father's death was his share of legitim. He had no claim to a share of dead's part. A discharge of a right to dead's part was meaningless and futile. It was not necessary that the words “legitim” or “bairn's part of gear” should be used. It was enough if, as here, it was clear (1) that the granter discharged something; and (2) that what he meant to discharge was his right to legitim— Foubister, 1694, M. 8181; Stephen v. Straiton, 1803, Hume 286; Stirling v. Luke, 1732, 11 R. 1019, foot-note; Clark v. Burns, January 27, 1835, 13 S. 326. The cases of Breadalbane and Keith, cit. supra, were cases where there was no discharge, and they concerned English deeds in which obviously the right to legitim was not in view. 2. What the other claimant proposed to do was to contradict a writing by parole evidence. That was incompetent. The document bore that the granter had received and had expended for him more than his share, and he now after several years, during which he had done nothing to get back the document or to protest against its retention by his father, and also after his father's death, proposed to prove by parole that he had never received anything like his share, and that the discharge was not granted as it bore in consideration of past payments already made, but in consideration of payments as yet unmade but to be made in the future. Such averments could only be proved by writ or oath—Dickson on Evidence, vol. ii., par. 1017, p. 578; Gordon v. Trotter, 1833, 11 S. 696; M'Phersons v. Haggart, December 15, 1881, 9 R. 306, 19 S.L.R. 212; Anderson v. Forth Marine Insurance Company, 1845, 7 D. 268; Clavering v. M'Cunn, November 26, 1881, 19 S.L.R. 139; Muller v. Weber & Schaer, January 29, 1901, 3 F. 401, 38 S.L.R. 305; Johnston v. Goodlet, 1868, 6 Macph. 1067. The last case was a case very much like the present, the allegation being that a discharge was granted in view of something else being done by the grantee which was not done. 3. The averments of essential error were irrelevant for want of specification. But apart from that all that was averred was (1) that the claimant did not know that a son was entitled to legitim by the law of Scotland, and (2) that the deceased ultimately turned out to be a richer man than his son supposed, no fraud or misrepresentation being alleged. Error as to the general law of the land was not a ground for setting aside a deed— Phibbs v. Cooper, 1867, L.R., 2 Eng. and Ir. Ap. at p. 170. The second statement could not be a relevant ground for setting aside a discharge of legitim.