United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir John Schaw, of Greenock, Bart. v. Dame Margaret, the Widow of Sir John Houston, Bart. Sister of the [1726] UKHL Robertson_552 (2 April 1726)
URL: http://www.bailii.org/uk/cases/UKHL/1726/Robertson_552.html
Cite as: [1726] UKHL Robertson_552

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 552↓

(1726) Robertson 552

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 126.

Sir John Schaw, of Greenock, Bart. Appellant

v.

Dame Margaret, the Widow of Sir John Houston, Bart. Sister of the Appellant Respondent

2d April 1726.

Subject_Presumption. — Intromission with the Settlements of a Person deceased. — Proof. —

In a reduction of a mother's settlements brought by her son and heir, against a sister, who was benefited by them, on the ground that the sister bad access to the repositories of the deceased, and took what she chose, and might have destroyed the rest; the sister stated in defence that the deeds had been given to her by her mother: it was necessary for the pursuer to prove that the defender's intromission was unwarrantable.

The deeds produced were presumed to contain the last will of the deceased. A circumstantial proof, brought by the pursuer, that the deceased had declared that she had made other settlements, and of embezzlement on the part of the defender, found insufficient.

By a contract, executed in April 1677, previous to the marriage of Sir John Schaw and Helenor Nicholson, the father and mother of the appellant and respondent, in consideration of the then intended marriage, and of the portion of Dame Helenor, (which was very considerable), the lands of Easter Greenock were settled upon her in life-rent, for her jointure; and she was likewise provided to the life-rent of one-third of all the real estate, which should be acquired by Sir John during the marriage, and to one third of all the household furniture.

After the marriage, the lands of Carnock and Plain descended to the said Dame Helenor and her two sisters, as heirs portioners; the yearly value of the whole being about 833 l. 6 s. 8 d. sterling.

By articles of marriage, in March 1700, between the appellant and Margaret, the daughter of Sir Hugh Dalrymple, President of the Session, it was agreed that the said lands of Easter Greenock should be settled upon the appellant and his then intended wife; and accordingly Dame Helenor released the same of her life-rent By another deed, of same date, Sir John, the father,

Page: 553↓

in consideration of such release by Dame Helenor, bound himself to pay her 2500 merks Scots per annum for her life in case she should survive him.

On the 19th of August same year, Dame Helenor, by a deed reciting, that it was agreed between Sir John Schaw the father, and Dame Helenor his wife, that she should renounce her right to the household furniture, the acquired estate, and other provisions made for her by the marriage settlement; and also that she should make a settlement of her estates of Carnock and Plain to herself in life-rent, and to the appellant her son in fee, subject to a power to Dame Helenor to burden the same with any sum not exceeding 50,000 merks Scots; and that Sir John the father should oblige himself and his heirs to pay her an annuity of 8000 merks Scots long as she should continue his widow; therefore released all the provisions made for her by her marriage contract, and settled her part of the estates of Carnock and Plain accordingly. And of same date, Sir John the father with the consent of the appellant, by his bond reciting the last-mentioned deed, and in consideration thereof, obliged himself and his heirs to pay to Dame Helenor an annuity of 8000 merks, so long as she should continue his widow. To both these deeds President Dalrymple was a subscribing witness.

Sir John the father died in 1702, leaving the appellant and respondent, his only children: and Dame Helenor afterwards remained a widow during her life. After the father's death, disputes arose between the appellant and his mother, on the question whether she was entitled to the annuity of 2500 merks, contained in the deed of March 1700, or to the annuity of 8000 merks contained in the bond of 19th August 1700. In 1709 she brought her action against the appellant, for this last-mentioned annuity, before the Court of Session: to this action the appellant appeared, but the cause was delayed for some time by his insisting on his privilege of parliament.

The appellant afterwards brought an action for reduction of the said bond of 19th August 1700, upon the ground that the settlement of the estates of Carnock and Plain, which was the valuable consideration for the same, did not exist; and in his libel he set forth, “that the lady did at diverse times declare before several witnesses, and particularly upon the 7th of June 1702, that she had cancelled that disposition some days before she was delivered of a posthumous child; and that when she did sign the said disposition, it was retained in her custody, and the then declared, that she would consider these deeds further, and if they did not please her, she would tear them.” Dame Helenor denied that she had cancelled the deed, but that the same was absolute and irrevocable on her part; she also offered to execute a new deed to the same effect, or to prove the tenor of the original settlement. She accordingly brought an action for proving the tenor of the deed, which she alleged was cancelled by accident, and in her libel set forth the words thereof at length. To this action the appellant pleaded, that it was not competent to prove

Page: 554↓

the tenor of a deed without first proving and particularising the casus amissionis; that Dame Helenor must be presumed to have been the destroyer of the Deed, because it bore not to have been delivered, and must be presumed to have remained in her custody, in order to its being ratified if she thought fit; and that it never was ratified by her. With regard to the proposal to renew the deed, Sir John stated, that the original being cancelled, the grant of the annuity was also cancelled; and that by the cancelled deed as set forth in the libel Sir John the father had concurred in several grants and provisions in favour of his son, which could not be restored by Dame Helenor's act or deed.

The Court on the 19th of July 1711 “Found that Dame Helenor having the disposition cancelled in her hands, and never ratifying the same judicially, presumed in law that it was cancelled by herself, and therefore that the obligements on Sir John by the bond are dissolved.” Against this interlocutor, Dame Helenor next day entered her protest for remeid of law; but presented no appeal to the House of Lords.

Sir John afterwards offered to refer it to the oath of his mother's counsel, whether they had not seen the cancelled deed in her custody; but having declined to depone, the Court on the 25th of July 1711, “In respect that in the debate Dame Helenor's having the cancelled disposition in her custody was not refused, and that her advocates refused to appear to give their oaths of calumny because of the appeal interposed, assoilzied the said Sir John Schaw ^(a).”

Dame Helenor prosecuted her appeal no further; but on the 6th of September 1711, she executed five several deeds for a settlement of her estate and effects, while she had in view the endeavouring to obtain a reversal of the decree of the Court of Session. Three of these deeds were executed to take effect in the event of the decree being reversed, and were of the following nature: First, a disposition of her share of the estate of Carnock and Plain, to herself in life-rent, and to the appellant her son in fee, reserving a power to charge the same with 50,000 merks Scots, and providing that the disposition should be void, if she should not be found entitled to the said annuity of 8000 merks, or in case the appellant should not pay her the same: Second, an assignation to the respondent of all the arrears of the said annuity due and to become due, subject to a power of revocation: and third, a deed charging the said estate with the payment of 49,000 merks to the respondent, pursuant to the reservation for that purpose.

The two other deeds were executed to take effect in case she should be found to have no right to the annuity of 8000 merks, and were of the following nature: First, a settlement by way of entail of the said estate of Carnock and Plain to herself in life-rent, and to the respondent her daughter and the heirs of her body; whom sailing, to such persons as Dame Helenor should

_________________ Footnote _________________

( a) These two interlocutors were the subject of the subsequent appeal, at Lady Houston's instance, against Sir John Schaw, No. 128 of this collection, to which appeal the foregoing statement of facts and precedents is an introduction.

Page: 555↓

appoint by any writing under her hand; whom sailing, to her own heirs and assignees: and second, an assignation to the respondent of the provisions in the marriage-contract in Dame Helenor's favour, particularly the arrears of the life-rent of 2500 merks secured to her, upon her renouncing her jointure out of the estate of Easter Greenock.

All these deeds contained powers of revocation, and none of them were delivered or put upon record, but the whole were retained in Dame Helenor's own custody. No alteration was made upon these settlements till about a month before Dame Helenor's death. On the 26th of February 1722, she executed an assignation of all her personal estate in favour of the respondent, subject to the payment of such debts and legacies as she should at any time give, with a power of revocation. On the 3d of March thereafter, she executed a deed reciting the former settlement of the estates of Carnock and Plain in 1711, and that the same was subject to a power of revocation; therefore she so far varied it, as to settle the same upon the decease of the respondent, and failure of heirs of her body upon Mrs. Maria Schaw, daughter of the appellant, and the heirs of her body, with several other substitutions of heirs, the last of them being to her own heirs whatsoever; and she directed, that this should be considered as part of the former deed 1711. Of same date she executed an assignation to the respondent of the arrears of the said annuity of 2500 merks: and the respondent executed a back bond, obliging herself to apply all the money she should receive of this last-mentioned annuity in the purchase of lands to be settled in the same manner as the said estate of Carnock and Plain was. On the 5th of March she executed in favour of the appellant's grand-daughter Miss Helenor Cathcart an assignment of several bonds to the amount of 2000 merks; and about the same time she assigned to Mrs. Helenor Houghton, the respondent's daughter, a bond of 500 l. sterling. All these deeds executed by Dame Helenor contained powers of revocation, and clauses dispensing with the delivery. She died on the 20th of said month of March 1722; and it came to be a question between the parties, which is the subject of the present appeal, whether Dame Helenor had not of a date subsequent to the settlements last mentioned, executed other deeds, conveying her estate, particularly the estate of Carnock and Plain, to the appellant.

Immediately after Dame Helenor's death, one of the baillies of Edinburgh, where she died, came and sealed up the presses, cabinets, and repositories, at the desire of the appellant. But when these were opened, the only deed that was found was the assignation in favour of Miss Helenor Cathcart, the appellant's granddaughter, executed on the 5th of March 1722.

The appellant thereupon commenced an action of exhibition ad deliberandum before the Court of Session, against the respondent; and the respondent produced all the deeds before mentioned conceived in her favour. The appellant afterwards brought an action of reduction and declarator against the respondent, to have all these

Page: 556↓

deeds set aside, on the ground, that the respondent had illegally and unwarrantably possessed herself of her mother's keys, and of her mother's strong box, in which she kept her deeds and writings; and that she had carried away these deeds and writings out of the house two days before her mother's death; which, it ought to be presumed, were done without her mother's consent: and that the respondent having had it in her power to preserve what might be for her interest, and to destroy what was not so, she had tendered her mother's will uncertain, therefore all the deeds executed in her favour ought to be declared void; or, the same being subject to a power of revocation, it ought to be presumed they were revoked; and the whole real and personal estate ought to be decerned to the appellant.

To this action the respondent stated as her defence, that what she had done was by her mother's authority; that she possessed herself of no deeds but which appeared to be properly belonging to her, and which, being in her custody, must be presumed in law to have been delivered to her; and that the mother had never altered or shewed any intention to alter any of these deeds. The Court, in July 1723, allowed both parties to prove their allegations, and many witnesses were examined.

The import of the proof appears to have been (for it cannot be distinctly stated on either side) that three nights before the old lady's death, the respondent's lawyer and agent were brought by her into the house, and the several deeds then carried away: no direct authority from the mother herself was proved for this: female witnesses about the person of the deceased swore that before her death, she had declared that she had settled all affairs between her children; that she had forgiven the appellant of all her claims, and even given him a gripe of the estate of Carnock; she mentioned too that she had left legacies to the mistress of Cathcart and to Colonel Cathcart, &c. and a donation to the poor of the parish, but none of those appeared.

On the part of the respondent it was proved by the writers and witnesses of the deeds which appeared, that they knew of no other deeds having been executed; and in a condescendence, given in by her, she denied all the allegations of the appellant. The cause coming to be heard, the Court, on the 22d of June 1725, “Found, that it was not proven, that the respondent's intromission with her mother's strong box and writings was unwarrantable.”

The appellant reclaimed, and after answers for the respondent, the Court, on the 20th of July 1725, “Found that the deeds in favour of the respondent, and of Mrs. Helenor Cathcart, and Mrs. Helenor Houston, are presumed to contain the last will of the deceased concerning her succession; and that no evidence arises from the proof adduced by the appellant, that the deeds in favour of the respondent were altered or revoked in his favour; or that the deceased concealed or embezzled any of the deceased's writings; and therefore assoilzied the respondent from the reasons of reduction insisted on.”

Page: 557↓

Entered 25 Jan. 1725–6.

The appeal was brought from “an interlocutory order of the 22d of June 1725, and an order or decree of the 20th of July following, made by the Lords of Session.”

Heads of the appellants' Argument.

Though evidence of the kind adduced by the appellant be not per se absolute and conclusive, yet when the respondent, by her clandestine and unwarrantable intromission, rendered the will of the deceased uncertain, conjectural evidence and presumptions must supply the place of direct proof: nothing could be easier than for the respondent to prevail on the writer and witnesses of the papers which must have been executed not to offer a discovery voluntarily.

The respondent insisted, that it was unnatural to suppose, that a settlement, the work of so many years, and in which it appears that the old lady had persisted till the 3d of March, 17 days before her death, should have been altered in the remaining short term of her life; at least that it was not to be believed without direct evidence. But this general observation did not militate against the appellant; the last of the deeds in favour of the respondent was dated on the 3d of March before Dame Helenor's death, and the only one produced in the appellant's favour was dated on the 5th of March, two days later: as that alteration was made, in those two days, the remaining period of the old lady's life left time enough for the other alterations.

Heads of the Respondent's Argument.

The several deeds in favour of the respondent were really and truly executed by her mother, at the respective times they bear date, and the latter of them, which confirmed the former one, executed so short a time before the lady's death, that there can be no foundation for presuming that any alteration was made.

By the law of Scotland, it is not necessary to prove the actual delivery of any deed; but if it be out of the possession of the grantor, it is presumed to have been lawfully delivered, unless it be proved, that the person possessed of such deed came by it in an unwarrantable manner.

No proof was made of giving instructions to revoke any of those deeds, or to prepare others in favour of the appellant. Deeds solemnly executed, cannot, without shaking the securities of all property, be set aside on pretence of such slender evidence of words spoken, at best ambiguous in themselves, or upon pretended presumptions, without any real foundation on facts.

Judgment, 2 April, 1726.

After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the interlocutory order and decree therein complained of be affirmed.

Counsel: For Appellant, Dun. Forbes. C. Talbot.
For Respondents, C. Wearg. Ro. Dundas. Will. Hamilton.

1726