Petition 1766

March 1 0 1766. • f- 1 f * Unto the Right Honourable the Lords of Council and Session,,*w ' v v r 1 1— ^ “ f T H E P E T I T I O N O F t William Marion, and Helen Gordons, children of Robert Gordon late baker in Edinburgh, and ex­ ecutors decerned and confirmed to the deceased Grizel Gordon their s ister, and of John Caitcheon carver in Edinburgh, husband to the said Helen, for his interest, • ' * ~ Humbly Sheweth, T HAT Janet Buchanan, relict of the deceased MrDavid Duncan minister of the gospel at Stow, did, of this date, execute a settlement of her affairs; b y which she, as a token of her gratitude and esteem for the Lord President and his family, settled certain small legacies upon his Lordship’s daughters, therein named, pay- able at their attaining to the age of fifteen years. And with respect “ to the residue of all my means and ef- fects, goods and gear, debts and sums of money, plate, jewels, household-furniture, bed and table linen, body- cloaths, parapharnalia, and every other thing, as well heir- ship as others, that shall belong t o me, or be owing to me the time of my decease, and dispensing with the generality hereof, hereof, I hereby assign and dispone the same, with the burden of all the debts that shall be owing by me, and the expence of my funerals, to the said Robert Dundas, E sq; and to the Rev. Mr Robert Wallace, one of the ministers of Edinburgh; to Mr George Wallace Advocate, his son; to Mr Charles Robertson writer in Edinburgh, or either of them, in trust, for the sole and proper use of Grizel Gor­ don my niece, only child of the deceased Margaret Bucha­ nan, my sister, procreate between her and Robert Gordon some time baxter in Edinburgh, her husband; and I nomi­ nate and appoint my said niece to be my sole and only ex­ ecutor and universal legatar, excluding her said father, and all others my nearest in kin, from any share or manage­ ment, or of any right or interest in my means and effects; and failing of my said niece before marriage, l do hereby substitute in her right and place of the premisses, Mrs Eli- sabeth Wallace, daughter of the Rev. Mr Robert Wallace minister of the gospel in Edinburgh.” * The bulk of Mrs Duncan’s effects consi sted of a bond for L. 200 Sterling granted to her by the Lord President; and she having died about April 1763, the said Grizel Gordon did, in virtue of the foresaid settlement, procure herself decerned and confirmed executor nominate to her aunt; and gave up, in inventory, the foresaid bond. Some months after Mrs Duncan’s death, the Lord President intimated, that he wanted to pay up the sum in his bond, and retire it; and as Grizel Gordon was then at London, she, on this occasion, appointed as her factor the said Charles Ro- bertson, one of her trustees. Grizel Gordon went to London about the end of Octo­ ber, or beginning of November 1763; after which the con­ tents of the foresaid bond was paid by the Lord President, and the bond was dclivered up to his Lordship, discharged, by the said Charles Robertson, the factor; and the money was lent out to Charles Dundas, Esq; brother to the Lord Presiden t; President; for which he and his l ordship granted their joint bond, of these dates, payable to the said Grizel Gordon, her heirs, executors, or asignees. Grizel Gordon returned to Scotland in October 1764, when the bond was given to herself, and kept by her till her death. She continued in Scotland from the 2 1st of the said month of October to the 12th of January 1765, during which period she transacted several affairs, and particularly with her factor Mr Robertson, who accounted to her for his intromis- sions, and was paid by her the expences of the above transac- tion. She approved of what was done in her absence, and Mr Robertson was discharged by her, at the sight, and in presence of the said Mess. Robert and George Wallaces. The said Grizel Gordon, after her aunt’s death, intromit­ ted with, and disposed of her other effects; the balance ari- sing from which, after payment of any debts that she owed, being L. 35, Grizel Gordon lent out to Bailie Blinshall, sad- dler in Edinburgh, and for which he granted her his ac­ cepted b ill: And she being again to set out for London, depo- sited two trunks in the hands of Bailie Blinshall, another with the petitioner Helen Gordon, and a press or cabinet she lodged in Dr Wallace’s house, carrying the keys of these trunks and cabinet along with her to London. Grizel Gordon having returned to London in January 1765, she soon after fell into a consumption, by which she was in a short time so reduced, that it became necessary for her to have some person to attend her as a nurse: And on this occasion the petitioner Helen Gordon left her family in Edinburgh, and went to London, in May 1 7 ' 5, where she remained with her sister to July thereafter, in which month she Grizel Gordon died in her passage from London to Leith. After Miss Gordon’s death, Mrs Elisabeth Wallace, upon a pretence that she w as intitled to the succession in consequence of the foresaid clause of substitution in Mrs Duncan's settle- ment, did remove from Bailie Blinthall’s house, to the house of of her father, the foresaid two trunks which Mis s Gordon had deposited with Bailie Blinshall; so that the only effects wh ich came into the possession of the petitioners, besides the trunk left with the petitioner Helen Gordon, was a gold watch, a silver snuff-box, some gold rings, a part of her body- cloaths, and a few other things that M iss Gordon had along- with her at London. The petitioners, after their siste rs death, procured them- selves decerned and confirmed executors nearest in kin to their si ste r; and gave up in inventory the foresaid bond for L. 20o Sterling, granted by Mr Dundas and the Lord Presi- dent, and a balance of L, 1 6, 18 s. Sterling, remaining due of the foresaid bill of L. 35 Sterling granted by Bailie Blin- shall; and every other particular they were possessed of was afterwards eiked to the testament. The petitioners, in November 1 brought an action at their instance before the sheriff of Edinburgh, against Mr Wallace, his wife, and M iss Wallace their daughter, conclu­ ding against them for exhibition and delivery of the foresaid bond, and also for their being ordained to give up invento­ ries upon oath of the effects in their hands, and to deliver the same to the petitioners, or to make payment of L. 500, as the value thereof. On the other hand, M iss Wallace brought an action be­ fore the court of session, against the petitioners, libelling up­ on the foresaid settlement executed by Mrs Duncan, and con­ cluding to have it found and declared, That she, in virtue of the subtitution in Mrs Duncan’s settlement, had the only right to the foresaid bond and bill, and to the whole other effects of which M iss Gordon died possessed, as having a- rose from the effects of Mrs Duncan; and that the peti­ tioners should therefore be decerned to exhibit, produce, and surrender to the pursuer, all goods, gear, and effects in their possesio n, which belonged to the defunct; or to make payment of the sum of L. 100 Sterling, as the value thereof. In In the process of exhibition, it was pled in defence, That there was a lis pendens betwixt the parties in the court of ses- sio n; and that therefore process ought to be sisted till the e- event of the action before the court of session. And, 2do, That were they to enter into the merits of the cause, they ought to be assoilzied, as M iss Wallace, in virtue of the fore- said substitution, had the only right to the subjects in dispute. And the sheriff, of this date, pronounced the following inter­ locutor. “ The sheriff having considered the libel, writs li­ belled on, and produced by both parties, defences and answers; repells the defences, and ordains the defenders to deliver up the bond mentioned in the libel to the pursuers; and to depone, and exhibit inventories of the defunct’s ef­ fects upon oath; and grants commission to the clerk of court to take their oaths.” Miss Wallace’s declarator came in course before the Lord Kennet Ordinary; who, of this date, pronounced the follow­ ing interlocutor. “ The Lord Ordinary having heard par­ ties procurators, appoints the pursuer to give in a parti­ cular condescendence of the whole facts and circumstances by her alledged, that passed at the time when the particu­ lar grounds of debt mentioned in the libel came, and were substituted in place of those originally due to Mrs Janet Buchanan; and from which she would infer, that Grizel Gordon neither knew nor meant any alteration should be in the substitution contained in Mrs Buchanan’s settle- ment, and that against next calling; and appoint the Lord President and Charles Dundas’s bond then to be given in to this process.” The pursuers thereafter gave in the following conde­ scendence. 1 mo, That a bond for the principal sum of L. 200 Sterling was due to the deceased Mrs Duncan at her death, by the Lord President. 2do, That his Lordship, soon after Mrs Duncan' s death,made made intimation, that he intended directly to pay up the money. 3tio, That Grizel Gordon expressed her desire, that he should keep it in his hands. 4to, She went to London in August or September 1763. 5t0, T hat the principal sum contained in that bond was never paid, either to herself, or Charles R obertson her factor. But, > 6to, That Charles Robertson, during her absence in Eng­ land, having confirmed the old bond, discharged the same; and instead thereof took the bond in question for the same principal sum of L. 200, from the Lord President, and his bro­ ther Charles Dundas. 7m o, That the confirmation was expede at the desire of the Lord President; and that Grizel Gordon gave no directions concerning the terms in which the new bond should be con­ ceived. 8vo, That Helen Gordon, one o f the defenders, went to England; and when the deceased Grizel Gordon was ill o f the disease of which she died in a short time, solicited her to make some deed for disappointing the substitution in fa­ vour of the pursuer; but that Grizel Gordon resisted so to do. 9no, That some furniture, and others, belonging to Mrs Duncan, were soon after her death sold by roup; and that the bill taken from Bailie Blinshall was granted for part of the price got for them. 10m o, That the circumstances of Robert Gordon, Grizel’s father, being low, she staid in family with her aunt, and could not get the said L. 200, or other effects in question, from him, 0r any other person than her aunt. Answers were put in to this condescendence; a copy of which is hereto subjoined; and the Lord Ordinary, upon ad- vising thereof, of this date pronounced the following inter­ locutor: Having considered this condescendence, with the answers thereto, before answer allows the pursuer to prove the the facts set forth in the condescendence, so sar as not ad­ mitted in the answers, and all facts and circumstances re­ lative thereto; and allows the defenders to prove the facts set forth in their answers, and all facts and circumstances relative thereto; and a conjunct probation to both parties; and grants warrant for letters of incident diligence,” The advocation was called, of this date, before the Lord Ordinary; when it was craved, upon the part of M iss Wal­ lace and her father, that the cause might be advocated, and remit to the process of declarator; and that they might be al­ lowed a proof of the facts set forth for them in the said proc cess of exhibition; which facts are in substance pretty much the same with those contained in the above condescendence, with this addition, That soon after Grizel Gordon’s death, the watch and rings which belonged to the testatrix were vo­ luntarily delivered by the now petitioners to Dr Wallace for behoof of his daughter: and the Lord Ordinary, of this date, pronounced the following interlocutor. “ Advocates the cause; remits the process of exhibition to, and conjoins the same with the process of declarator at Elisabeth Wal- lace’s instance against the pursuers of the exhibition, de­ pending before the present Lord Ordinary; allows the de­ fenders in the exhibition to prove the facts set forth for them in that process, and the pursuers a conjunct proba­ tion, if they think fit to use it; and both parties to prove all other facts and circumstances that they may judge ma­ terial in the cause.” A representation was preferred against the foresaid interlo­ cutors of the 13th and 22d February, in so far as the same allowed a proof to the pursuer Miss Wallace; and in this re­ presentation the now petitioners insi sted for a diligence for re­ covering the correspondence between Miss Gordon, when at London, and her factor, with a bond of relief by Mr Dundas to the Lord Presid en t; and the Lord Ordinary, of this date, pronounced the following interlocutor: “ The Lord Ordinary “ having considered this representation; in respect that by the the interlocutors already pronounced, the representers have right to cite havers, and get exhibition of the letters or o- ther writings mentioned in the representation, and that these interlocutors determine nothing against the represent­ ers concerning the body-cloaths or parapharnalia of the de- ceased Grizel Gordon, refuses the desire of this representa- tion. " Of these interlocutors the petitioners humbly crave your Lordships review. At present it will be quite unnecessary to enter into the question, How far it was in the power of Grizel Gordon, by a gratuitous deed, to evacuate the substitution in Mrs Dun- c an's settlement? or, 2do, How far M iss Gordon’s having confirmed her aunt’s subjects, uplifted the same, and lent out the money, payable to herself, her heirs, executors, or asi g- nees, is de facto an alteration so as to evacuate the substitution, if in her power? These questions are entire before the Lord Ordinary; he hath as yet given no judgment upon them; and therefore the only question that is humbly proposed to be submitted to your Lordships consideration at present is, How far the proof demanded by the pursuer, in this case, is at all competent? The import of the condescendence offered to be proved a- mounts to this, That the funds of which Grizel Gordon died possessed, and particularly the foresaid bond, and the bill due by Bailie Blinshall, did arise from the proper funds o f Mrs Duncan; and, 2do, That no alteration of Mrs Duncan’s set­ tlement was meant or intended by Grizel Gordon, in lending out the money, and taking the same payable to herself, her heirs, executors, or assignees. With respect to the f irst, a proof is altogether unnecessary, as the petitioners do fairly acknowledge, that they do believe that the money in question did arise from Mrs Duncan’s funds: And with respect to the second, it is humbly submitted to your Lordships, if it is at all competent. Where Where any person acquires a right to a subject from a third party, or takes a bond or obligation from his debtor, although these deeds are only signed respectively by the disponer and the debtor, yet there can be no doubt, that as the right of the disponee and creditor is constituted by these deeds, that the succession in these particular subjects will be thereby regula­ ted. For although the act of the debtor is necessary to consti- tute the obligation, yet the form of the obligation depends upon the will of the creditor. It is by the will of the creditor that the same is regulated, and it is always conceived in such terms as he thinks proper. If he means that the same should descend to his executors, the same is taken payable in com­ mon form to his heirs and executors; if he means, that it should descend to his heir, his executors are excluded; or if he means, that any other party should take it, he may call them as substitutes in the deed: so that, although the deed be signed by a third party, yet in every question relative to the succession of the creditor, it is considered to be the proper deed of the creditor; and will have the same effect to regulate his succesion quoad that subject, as if he had executed a deed of settlement relative thereto under his own hand: and there­ fore the question comes to this, Whether, where a settlement is executed, and found in the repositories of the defunct, and is conceived in the plain and known language of the law, it is competent to explain that settlement, by a proof of extra­ neous facts and circumstances by parole-evidence, so as to give it an effect different from the plain and known import of the deed? This the petitioners humbly apprehend is contrary to the ge­ nius, and one of the fundamental principles of the law of Scot­ land. It is an established principle, which cannot admit of a doubt, That writing is absolutely necessary to the transmission of every real right, although of the most trifling or insignificant value. If a man should declare, in the most plain and explicit terms, that he intended his estate to go in this or the other chan- C ~ nel; nel; yet unless the same was reduced into a proper writing, it could have no effect, nor transmit the smallest inch of property to those named by him. In like manner the law of Scotland hath made writing ab- solutely necessary to the constitution of a testament, and a nuncu- pative legacy will not he sustained beyond L. 100 Scots; and therefore, where a deed is conceived in apt and proper terms, as every man is presumed to know the legal import and mean­ ing of words used in his own deeds, it must be constru cted ac­ cordingly. If the legal import of words are to be departed from, there is no knowing where to stop; it will throw every thing in­ to the greatest uncertainty; and to allow witnesses to put a dif­ ferent construction on that deed, by proving, that the testator's intention was different from what is expressed, is plainly allow­ ing a settlement to be constituted by parole-evidence, contrary to one of the fundamental principles of our law. And indeed, with submission, to allow witnesses to explain a settlement, and give it a construction different from the legal and known import of the deed itself, is giving a stronger effect to the testimony of witnesses, than if nuncupative settlements were to be sustained and proved by witnesses, without the intervention of writing. Where nuncupative settlements were sustain- ed, which was the case among the Romans, still no man was obliged to trust the transmission of his succession to the lubricity of witnesses. He had it in his power, if he pleased, to make his will in writing, and so put it out of the power of witnesses to defeat his intentions; but if, after a man hath made his will in writing, witnesses shall be allowed to explain that will, and to give it a construction different from the natural meaning of the words, no man can be sure that his will will have effect, when it is in the power of others to give it a meaning different from what he intended. To admit of nuncupative settlements, is giving no stronger ef­ fect to the testimony of witnesses, than to allow them to prove the will of the defunct, which he had not declared in writing; but to to allow witnesses to explain a settlement properly executed in writing, is clearly putting it in the power of witnesses, first to destroy the will of the defunct, and then to substitute another in its place. The application of these principles to the present case is ob­ vious. The bond in question must be considered as the pro­ per deed of Grizel Gordon. It was found in her repositories after her death; it is the deed under which her right to the sums in dispute were constituted, and under which the con­ tending parties must maintain their claim to the money for which the bond was granted. The heirs called under that deed have, upon the death of the creditor, the same right to the contents of the bond, as if they had been called under a for­ mal deed of settlement executed by the defunct herself: and as the deed is clear, and liable to no sort of ambiguity; so, with submission, it would be subversive of the established principles of the law of Scotland above set forth, to admit parole-evidence to defeat the right of the persons who otherwise would be in- titled to-take under that deed. And therefore the petitioners do humbly submit it to your Lordships, if the proof demand­ ed by the pursuers ought not to be rejected as incompetent. And, further, the petitioners do humbly apprehend, that al­ though the proof was competent, that yet the facts condescend­ ed on, other than what are already admitted, are altogether ir­ relevant. The articles in the condescendence, tending to show, that the money in question did arise from Mrs Duncan' s funds, need not here be noticed, as they are admitted; and it is full entire before the Lord Ordinary, how far it was in the power of Gri- zel Gordon to defeat the substitution in her aunt’s settlement. But as to the other articles of the condescendence, the petition­ ers do humbly contend, That although they were true, they would not be relevant to establish, contrary to the express tenor of the bond in question, that Grizel Gordon did not mean to defeat the substitution in her aunt’s settlement.. ' The The substance of the condescendence amounts to this, That soon after Mrs Duncan’s death, the Lord President having in­ timated his intention to pay up the money, Grizel Gordon ex- pressed her desire, that he should keep it in his hands: That the new loan was transacted by Grizel Gordon’s factor, when she herself was at London; and that no directions were given by her concerning the terms in which the new bond was to be conceived: That Helen Gordon, one of the petitioners, went to England; and that when Grizel Gordon was ill of the dis- ease of which she died, she solicited her to make some deed for disappointing the substitution in Mrs Duncan’s will; and that she refused to do so. In the first place, it is most natural to prefume, that Gri­ zel Gordon would incline to prefer her own brother and sisters to this pursuer, who was a mere stranger, and with whom she was not in the least connected. It is of no consequence although Grizel Gordon had ex- pressed a defire, that the money should continue in the Lord President’s hands. It was natural for her to do so, as the se- curity was unexceptionable. But it will not from thence fol­ low, that she meant it should continue upon the plan of Mrs Duncan’s settlement; nor can any mortal take it upon them to say, that if a new bond had not been granted, taking the money payable to her own heirs, executors, or assignees, that she would not have executed a deed settling the money in that manner. Neither is it of any moment, although she had refused to her si ster to execute a new settlement: she might have refused it, as she already knew that the bulk of her funds were settled in favour of her own brother and si sters. Besides, it is very common and ordinary for people to conceal their settlements and intentions as to these matters, even from their nearest re­ lations. Many reasons may concur why a person should not chuse to divulge their settlements or sentiments relative to their succession; yea, it often becomes necessary even to dis- guise guise their sentiments in these matters: And therefore, altho’ M iss Gordon had said, that she would not alter th e substitu­ tion in Mrs Duncan’s settlement, yet it would have no effect to invalidate any deed by which an alteration was made up­ on that settlement; nor could it tend to establish any delibe­ rate intention in her at the time not to disappoint the subst i tution in Mrs Duncan’s will. At the same time the peti­ tioner Helen Gordon must observe, that this averment in the condescendence is without the least foundation. And as to what is said, That the new loan was transacted by her factor in her absence, without receiving any directions from her concerning the terms in which the bond should be conceived, it must occur to your Lordships, that the presump- tion is, that the factor would act agreeably to the directions of his constituent; and if such proofs were competent or ne- cessary, it could easily be shown, by written evidence, that the whole of the factor’s management was perfectly agree­ able to her inclinations and intentions; that upon her return to Scotland, when the bond itself was put into her h a n ds, she approved of her factor’s conduct in every particular, and discharged him fully of all his management, at the sight and in presence of Mr Wallace and his son, the father and bro­ ther of the pursuer. And indeed, when the bond was confessedly accepted of by her, and upon which she relied, as the only security she had for the money, and was accordingly retained by her, and found in her repositories after her death, it must supersede e- very inquiry, whether the factor had any particular directions as to the way and manner in which the bond should be con­ ceived. It is sufficient to say, that she had accepted of the bond as her proper evident; and as it must be presumed that she knew the legal import and meaning of an evident in her own custody and possessio n; so if she had intended that the money should have gone in a different channel than as des i­ r ed in the bond itself, it cannot be doubted, and must be pre- D sumed, sumed that she would either have got the bond renewed in these terms, or would have executed a deed, settling it in such manner as she inclined. And therefore, upon the whole, as the proof demanded is incompetent, so the petitioners humbly apprehend, that there is no relevancy in the facts condescended on. M a y it therefore please your Lordship, to alter the fo resa id in- terlocutors of the Lord Ordinary; and to find, That the proof demanded by the pursuer in this case, is not competent; and that the fa cts offered to proof though proved, are not relevant to defeat a deed properly executed, or to deny to it its proper and legal effect; and therefore to remit to the Lord Ordinary to determine the caus e upon the import of the deeds, as they now stand. According to ju stice, &c. RO. M A C Q U E E N. A N S W E R S for William, & c. Gordons, to the Condescendence given in for Miss Wallace. T O the f irst, This article is admitted. To the s econd, That it was six months after Mrs Duncan’s death, before the Lord President intimated that he intended to pay up the money. To the third, The respondents don’t refuse, that Grizel Gordon may have expressed her desire that the Lord President would keep the money, because of the goodness of the secu- rity; but she expressed no desire that he would keep it upon the old security. To the fourth, That Grizel Gordon did not go to London till the end of October or beginning of November 1763. To the fifth, That the bond in question bears the sum of L. 200 Sterling to be borrowed and received from Grizel Gor­ don herself. To the s ixth, That Grizel Gordon was confirmed executor to Mrs Duncan by her factor, and with her approbation. The present bond was by no means taken instead of the old bond. The bond to Mrs Duncan was granted by the Lord President alone; that bond was legally discharged, and L. 200 Ster­ ling lent to Charles Dundas, Efq; for whom Lord President, though jointly bound in the bond in question, is only cau­ tioner. To the s eventh, That it was on occasion of the Lord President' s inclination to pay up the money, and Miss Gordon’s going to London, that she granted factory to Charles Robertson; and the bond in question was granted and taken with the advice, consent and approbation of the Lord President, and Mess Ro­ bert and George Wallaces, father and brother to the pursuer; who, with the said Charles Robertson, are the trustees to whom Mrs Duncan disponed her effects. That on Grizel Gordon’s return to Scotland in October 1764, the bond was put; [l i J put in her own hands. She continued in Scotland from the 2 1st of the said month of October to the 12th of January 1765; and in that period transacted several affairs, both with the Lord President, and her factor Mr Robertson, who ac­ counted to her for his intromissions, and was discharged at the sight and in presence of the said Mess. Robert and George Wallaces. And she appeared very well satisfied with every thing done in her absence. Neither did the pursuer’s father or brother ever complain of the alterations thereby made in Mrs Duncan’s settlement, or the conception of the bond to Grizel Gordon and her heirs, executors, or assignees. To the eighth, It is expressly denied, That Helen Gordon ever solicited her si ster Grizel to make any deed for disap- pointing the substitution in favour of the pursuer; consequent- ly Grizel Gordon could not refuse so to do. The said Helen went to England, on account of her si ste r ’s indisposition, and attended her two months as a nurse before she died. To the nith, That the respondents know nothing about the matter here condescended on: it may, or it may not be true. And, To the tenth, The circumstances of Robert Gordon, it is acknowledged, were not opulent. His daughter Grizel’s stay­ ing some time in family with her aunt, does not found the presumption drawn from it, That she could not get money or effects from others; at the same time those she got from her aunt were as much her own as any could be. 0 7 6., * w 1 ' 6 v 7. — For myse lf and the other pursuers.