Scottish Court of Session Decisions

An action of multiplepoinding was raised in February 1902 by the trustees acting under the trust-disposition and settlement of the deceased William Gordon, solicitor, Aberdeen, in connection with the distribution of the deceased's estate. The pursuers called as defenders all the persons so far as known to them who had any interest under certain testamentary writings left by Mr Gordon.

A claim was lodged by Miss Jessie Forbes, 69 Crown Street, Aberdeen, as a creditor of the deceased.

Miss Forbes was not called as a defender in the action, but she averred that in consideration of her abandonment of a certain claim against a third party in whom the deceased took an interest, he had bound himself to pay her an annuity of £25 per annum during all the years of her life. This obligation she averred “was undertaken in a document in the following terms:—‘35 Albyn Place, 29th April 1898.—My dear Miss Jessie—I am sorry that I am still unable to give you such a reply as you would wish, and I need scarcely again remind you of what I have so often expressed as to difficulties in the way. All I can say at present is, that I guarantee, from whatever source it may ultimately come, £25 a-year, say at Whitsunday yearly. I know it is not much, but it will, I trust, be of a little use.—Believe me, with best wishes, yours very sincerely, William Gordon.’ On 7th May 1898 Mr Gordon sent the claimant a letter in the following terms:—‘My dear Miss Jessie—With reference to my last letter I send you enclosure, being £25, to be continued at Whitsunday yearly.—With best wishes, believe me, yours very sincerely, William Gordon.’” The claimant further averred that she “received the £25 mentioned in said letter, and thereafter Mr Gordon made payment to her during his life of the said annuity of £25 at the usual half-yearly terms.” She claimed “to be ranked and preferred upon the fund in medio for an annuity of £25 a-year during all the years of her life; or alternatively to be ranked and preferred upon said fund for such sum as will enable her to purchase an annuity of this value.”

On 18th July 1903 the Lord Ordinary ( Pearson) pronounced an interlocutor containing findings with regard to all the claims lodged except Miss Forbes'. With regard to that claim his Lordship said in the course of the opinion which he delivered that he was prepared to find it irrelevant as it stood, but that he would give Miss Forbes an opportunity of amending it.

In the end of September 1903 Miss Forbes went to South Africa on account of her health, and in order to seek a livelihood, animo remanendi.

On 19th November 1903. an amendment of Miss Forbes' claim having been lodged, the Lord Ordinary, on the motion of the pursuers and real raisers, ordained Miss Forbes to sist a mandatory within fourteen days.

On 8th December the Lord Ordinary, in respect that Miss Forbes had failed to sist a mandatory, repelled her claim. His Lordship granted leave to reclaim.

Miss Forbes reclaimed, and argued—The present difficulty had been created by the deceased, and the claimant was not bound to sist a mandatory— North British Railway Company v. White, &c., November 4, 1881, 9 R. 97, 19 S.L.R. 59.

Argued for the pursuers and real raisers—The claimant was not called as a defender;

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she claimed as a creditor, and being resident abroad she could only insist in her claim if she sisted a mandatory.