William Gordon and others v. Elizabeth Wallace — Answers, 3 Jan 1767

A N S W E R S l F O R / E l i zabeth Wallace, F o The P E T IT ION of OR//RoT h eP E ANSW and others. IN Octobcr 1760, Mrs. Duncan, w ith her own hand, executed the settlement mentioned in the petition, b y which, failing Grizel Gordon, her niece, before marriage, she substituted in her place the respon dent, one of her nearest relations, to whose father’s fa­ mily she considered herself, from her earliest years, to have lain under particular obligations. Mrs. Duncan died in Spring 1763, and immediately after her death the Lord President, debtor in the first bond granted to Mrs. Duncan hers elf, intimated to Grizel Gor­ don, or others interested, that he intended directly to pay up the money thereby due. Grizel Gordon, being unwilling to change the secu rity or alter the right, delayed as long as possible, and being obliged to go to London towards the end of Au­ tumn 1763, she did, notwithstanding the intimation that had been made by the Lord President so long before as the April or May preceding, leave matters at her setting out for January 3. 1767, for London, precisely on the same footing with respect to the foresaid bond, in which she had found them at the death of Mrs. Duncan. But during her abs ence a new bond, granted jointly and. severally by the Lord President and his brother, was signed on the 17th and 24th days of November 1763, for L. 200 Sterling, being intended to be substituted by them in place of the old one granted to Mrs. Duncan for the in­ dividual sum by the Lord President alone. And as the debtor insisted for confirmation, which he was intitled to demand, to support his discharge, that bond was confirmed; but the confirmation, which is produced, was not expede till the 24th of January of the following year, many, months after Grizel Gordon had left Scotland, as well as after the pres ent bond had actually been signed, therefore merely for the purpose of s ecuring the debtor; and the old bond, having that day been given up in inventory, was the very next, to wit on the 25th of January, delivered discharged to the Lord President, by whom the other bond, granted by his Lordship and his brother, was substituted in its place. Grizel Gordon did not make up a title either to Bailie Blinshall’s bill, or to any other part of Mrs. Duncan's ef­ fects; the bond was the only thing to which she made up any title, as appears from the confirmed testament itse lf; and any effects, which were sold, were disposed o f with the approbation of the trustees, and the ballance of the price put into Bailie Blinshall’s hands, immediately after Mrs. Duncan’s death, about Whitsunday, as Grizel was then obliged to flit out of the house her aunt had possessed. T he confirmation therefore, which extends to the Lord President's bond only, was not expede, nor was the secu- rity altered by Grizel Gordon herself, or at her desire; but both are now at last admitted to have been done during during her absence at London by Charles Robertson, one of the trustees appointed by the will of Mrs. Duncan factor for her, in consequence of the particular desire of the debtor. And no part of the said L. 200 was actually paid on the occasion, either to Grizel Gordon herself, or to Charles Robertson, as the Petitioners have often, to give some co­ lour to their argument, found it necessary to insinuate: Any private transaction therefore, which passed between the Lord President and his brother, cannot enter the pres ent questio n; because the only thing, which Mr. Robert­ son got for discharging the old bond, was the new one, being the bond in process. Nor is it pretended, that either Grizel Gordon, or Charles Robertson, gave any directions about the destina tion that should be thrown into this new bond. Indeed, that they did not, is established by real evidence, arising from the date of the bond; and the Petitioners, though they have had repeated opportunities, have not adven­ tured to deny the fact. The new bond was written by Mr. Newbigging, the Lord President’s clerk, who did, no doubt, copy the common stile used in such bonds; and it happened thereby to be conceived, not in terms of Mrs. Duncan’s will, to Grizel Gordon, and failing her before marriage to the respondent, but simply to G rize l Gordon, her heirs, execu­ tors and assignees. This clause, so thrown in, is now made the foundation of a claim to the contents by the Petitioners, Grizel’s brother and si sters by the father only, to cut the respon­ dent out of her right thereto, contrary to the known w i l l and clear intention, not only of Mrs. Duncan, the original but also of Grizel Gordon the last defunct But it must immediately occur to your Lordships, that, as the money originally belonged to Mrs. Duncan, and not. not a single penny of it was or could be aliunde acquired by Grizel Gordon, the claim maintained by the petiti­ oners must be extremely unfavourble, being to counter­ act a deliberate settlement made super pecunia et re sua by a p r o p r i e t o r, with whom they had no earthly connection ei­ ther by blood, by friendship, or scarcely by acquaint­ ance. • Indeed, any deed, which even Grizel Gordon herself had made to disappoint that settlement, could not have been viewed in a more favourable light, as it would have been overturning the will of an aunt to whom she owed her education, her subs istence, and her all. Such alteration can never be presumed in any case, but must always be produced or p roved; and the respondent, in support of the Lord Ordinary’s ju st interlocutor in all its parts, will maintain, 1 mo, That Grizel Gordon had no power gratuitously to alter the settlement made by her aunt. 2do, That if she had such power, she hath not actually excrcis ed i t for that neither was the bond granted by the Lord President and his brother her act and deed, nor, if it had been such, was it intended for, or could it im­ port an alteration. Upon the first point, your Lordships will observe, that-Mrs. Duncan by her settlement did directly dispone and make over her means and effects to four trustees therein named, or either of them; and as the property was thereby vested in them, it is impossible that Grizel Gordon could have any power over the subjects thereof, at least she could not gratuitously dispose of them, as every trust is intended for the preservation of the subject, and she could not counteract it in any manner. That was a power which even the disponees themselves could not exercise, because they could not defeat the ends or purposes for which the trust was committed to them. A A person, for whose benefit a trust is created, or an estate is vested in others, has no immediate or direct power over that estate; the sole right, with the power of administration, is lodged in the trustees, and the only remedy or right, which that person has, is an action for compelling them to account or apply the fruits or pro­ fits in terms of the trust; but every act or deed, by which such person pretends directly to interfere with the sub- ject itself, is ips o ju re void. The intention therefore, which the testatrix had in naming trustees, were it such only as the petitioners pretend, could not influence the question; for, if the property was actually vested in them, that circumstance would necessarily operate its full legal effects in their fa­ vour, and impose limitations on Grizel Gordon, or de­ prive her ex necessitate of any power of disposal of the subject disponed to them. But the respondent cannot agree with the petitioner (p. 7.) in thinking, “ That the intention of naming trustees in the present case was not to diminish the right of the person for whose behoof the trust was conceived, or to limit her power of disposal in any shape.” For that is the very and capital intention of naming trustees in every case; and the respondent sub mits it to be perfectly clear in the present cafe, all cir cumstances considered, that the trust was created and in­ tended for the purpose of making the testament effectual, or, which is the same thing, for preventing the substitu tion from being altered, and hindering the effects from being squandered, as well as descending either to Robert Gordon Grizel’s father, the testatrix’s next of kin, who are expresly excluded, or to any other than the respon­ dent, the prediclecta pers ona immediately substituted by the Elii za the proprietor. It It is therefore needless to follow the Petitioners through their argument concerning proety, which indeed resolves itself, when attentively considered, into a mer petitio prin­ cipii That a f iar, who is absolute proprietor, may dispose of his property at pleasure; a principle which has no­ thing to do with the present case, because Grizel Gor­ don was not such proprietor or fiar. The property was vested in the trustees; and they could, if they had thought proper, have called, after as well as before the confirmation, for the money due on the new bond from the Lord President and his brother, and laid it out in any other manner they had thought agreeable to the trust reposed inthm.Trf Gizel ’s power, which was in every particular controlable or defeasible by them can not possibly be said to have been unlimited, without a plain contradiction; and it is, with submisio n, inconceiv­ able, how me can in these circumstances be pretended to have been an absolute fiar. And, were it necessary to account for the naming o f Grizel Gordon executor or universal legator, the pur- pose plainly was, because the trustees, or the respondent or both, might have died or failed; and it was forseen that the trust would in that case be no longer of any use as the purpose for which it was intended, of preserving the effects to the respondent, would thereby be at an end. It c an h ave a s little influence, what is observed for the petitioners that the trustees did not confirm them- selves, which they might have done, but allowed Grizel Gordon to be confirmed; for her confirmation could not affect or diminish their right, as she both did and was obliged to find caution to account to them and all hav ing interest; and many reasons might induce them, in due circumstances, to allow the confirmation to go out in her name: but the caution found must make the money money be held still in medio, in the same condition it was before the new bond was taken, or the least alteration can be pretended to have been made. Confirmation does not constitute an executor, f iar or proprietor. It entitles the executor confirmed to intro­ mit, to pursue, to uplift, and to discharge. But it is a very different question, what he is bound or entitled to do with the subjects on receiving them; and the res pondent submits it to be clear, that so far is the property from being vested in an executor, that, on the contrary, he is accountable to all having interest in the effect s: He finds caution to that purpose, and he is not entitled to dispose of them at pleasure, or allowed to pay even the most trifling debt without the authority of a decreet. The manner, therefore, in which the second bond was conceived can have no influence on the question, and it cannot be regarded, that the trustees did not take it pay­ able tothemselves, but allow ed it to be taken payable to Grizel Gordon; for, besides that the new bond was both written and signed before they saw it, the mistake, inat­ tention, or delicacy of the trustees, or any of them, those particularly who were immediately connected with the respondent, in not interfering about the terms in which that bond was or should be conceived, may well render the case of the respondent more favourable, but can never hurt her; because they might easily and cer­ tainly have prevented all dispute, by directing the bond to be taken payable, either to themselves, or to the re­ spondent nominatim failing Grizel Gordon before mar­ riage. The principles laid down by the petitioners about in- stitutions and substitutions, might safely be admitted, and would perhaps hold in some cafes, but do not ap­ ply in the least to the present, because they apply only to institutes, in whom a fee is absolutely vested. Such insti- tute tute may perhaps alter a destination made in favour of a substitute; but that has been already shown not to be the present case; and it cannot be disputed, that in every case, in which the fe e is not vested in the institute, he has no such power. In the present cafe no fe e was vested in Grizel Gordon, but was expresly vested in other persons; and therefore, as every case must rest upon its own cir- cumstances, Grizel Gordon cannot properly be said to have been more than what in England is called a ceslui que use or trust, or person for whom, with others, a trust was created, and she could not dispose gratuitously of subjects which did not belong to her. If trustees had not at all been named by Mrs. Duncan, but she had directly instituted Grizel Gordon, and sub- stituted the respondent; it is not clear that she would, even in that case, have become fiar absolute and unli­ mited. The very definition, given in the books which explain the nature of fees-simple and fees-tail best, is that a fee-simple is never understood to be created over a subject, unless it be devised or disponed to the dispo nee and his heirs general; and in every case, in which no mention is made of heirs, but another person is directly substituted and called after the institute or disponee, it is understood to be, not a fee-simple but a fee-tail. That is precisely the present case: no mention is made of Grizel Gordon’s heirs; on the contrary, her father and the next of kin are expresly excluded, which is tanta­ mount to the strongest prohibition; and a substitution is directly made to the respondent, whose interest was therefore more than a mere spes successionis, as Grizel Gordon was not unlimited fiar, and it could not be ca priciously disappointed by her, the respondent being put, on the event therein supposed, in her full right and title to all and every one of the premises. The The decision quoted by the petitioners, Wauchope a- i gainst Gibson, has no affinity to the present question. The case there was not o f a succesi o n or universitas, but o f a s ingle bond of provision payable to the creditor, at a term therein specified; and it was simply declared by the granter that part o f the money should, in a certain event, be retained by his heir, and the other go among the brothers or sisters o f the creditor: The creditor survived i the term o f payment, by which means the money be­ came his absolute property; and the Court found he was not barred from disposing of it by a deed expres ly made by himself for that purpose. But that is totally different from I the present case, which relates to the interpretation and effect o f a deliberate settlement made by Mrs. Duncan over her whole means and estate, and the fee o f the money was not there vested in trustees, as it is here, but in the creditor h im self, who had the fu ll property as well as jus exigendi, and did, too, much more than mere­ ly change a security, ex necessitate, at the desire o f the debtor. Upon the whole, therefore, o f this first point, it is sub- mitted, that G rizel Gordon neither had nor was intend­ ed to have any power o f gratuitously disponing the ef­ fects in question: But the respondent does further, with great subm isi o n, maintain, in the second place, that if she had had such power, she neither did nor intended to exercise it, nor can the acts, that appear here to have been done, import an alteration. For 1mo, The whole transaction from first to last, res pecting the changing o f the security, was not her act and deed, but the act and deed o f other persons by whom the affair was transacted ’without her interference during h e r absence; that is the natural presumption arising from the circumstances o f the case: But it is further certain that Grizel Gordon did not give any directions or orders about the clause or destination that happened to be thrown in­ to to the bond. Therefore that clause cannot possibly, in law or justice, have any effect, either upon her succession, or on that of Mrs. Duncan, which can only be regulated by deeds that can truly and fairly be said to have been theirs. Nor can it alter the case that Charles Robertson had a factory from Grizel, as it cannot be pretended a factor has power to make a settlement for his constituent, or that any such power was given him by his factorship. Much less can it influence the question, that she simply cleared with mr. Robertson, or that the bond was put into her bureau: for the old one had been already dis- charged; it is believed she never read, and seems to be admitted that she could not understand it; and she couldmean no more than to keep it like a bill or other vouch- er of a debt: farther her approbation cannot be stretched. As, therefore, it is indisputable that Grizel Gordon had no hand in making or taking the new bond, it is past the respondent's comprehension how that bond can possibly regulate any question about the descent of her estate. But 2do, If it had actually been her deed, and she hadtruly given directions about making it, the respondent, with great submission, denies, as the Lord Ordinary has very properly found, it could have any influence upon her succession. The acts of parties do not operate beyond their intentions: This maxim is particularly true with regard to questions of succession, which are generally questiones voluntatis, in which the intention of the testator is the regula regulans in all cases: And the contrary doctrine would indeed be not only dangerous, but productive of manifest injustice, and amount to a total repeal of the sovereign rule, Pater familias uti legassit, by making wills of deeds, which the deceased never intended for such. The only only view a creditor has in taking a bond for borrowed money, is to have a voucher fo r h is debt; and such bond can never be taken for a s ettlement contrary to its proper nature, unless it contain some clause that plainly indicates such intention, or destines the subject to a series of heirs different from those intitled to take it by the ordinary course of law. A deed not granted by the proper party, but by some other, may sometimes have the effect to re­ gulate the succession of the person by whom it is not made: In charters and such deeds that may and must ge­ nerally happen from necessity, because there are often no other heirs to whom the subjects are destined, except those to whom they are taken in the charters, &c. or perhaps these proceed on procuratories of resignation, or other the like deeds made by the proprietor for the very purpose of regulating or altering his succession; but it must surely require the strongest evidence to make a deed not executed by the proper party have the effect to determine his succession or alter a prior destination; that may happen in cases in which it is the only deed extant relative to the subject, but can never happen in any in which there are other deeds, settlements or circumstances deliberately and purposely made fo r regulating the mat­ ter; and in every case, in which a subject is destined only to heirs and assignees whats oever, or to heirs executors and assignees, that clause, being abs olutely use les s, cannot consistently with common sense be accounted a settlement, as the subject would equally go to the same heirs withoutas with it; and therefore it is the nature of the subject, not the deed relating to it, that can ever determine its desc ent in such cases. If instead of a bond, a simple bill had been taken, the petitioners could have confirmed it qua Grizel s nearest of kin, and it would have been equally destincd to her, her heirs, executors and assignies with the present I bond; bond: yet it will not be pretended an alteration would thereby have been produced. Hence the clause, to heirs, executors andige,thrown into the present bond, being clearly no more than words o f stile, must have been perfectly unmeaning and ineffec­ tual, and Grizel Gordon, if she had had any hand in the deed, or intention in using the words, cannot possibly be understood to have meant thereby to alter any prior set- tlement made either by herself or her aunt, or more than to get a document and security, the common and only view in taking a bond expresly bearing to be grant­ ed for borrowed money. The deed was no more than a simple bond at the time it was signed, so it was consi dered by all concerned; and how it could possibly all of a sudden alter its nature, and become a settlement, is not easily understood. It is impossible to believe the girl could understand it in that sense, nor by the words her heirs, ex­ ecutors or asigne, can any others be intended in law, than the heirs substituted to her by the will of Mrs Duncan that gave her right to the money. Heir is a pliable word, and your Lordships have never found anterior settlements to be altered by subsequent deeds, either heritable or move- able, especially when granted by third parties, in any case in which these last deeds did not appear to be made or taken for the purpos e o f making an alteration, but were ascrib- able to another view. Nor has the court distinguished between what the petitioners call accessories or collaterals, and deeds disponing the whole and entire subject supposed to be devised by prior ones, because the sole principle on which all the decisions uniformly proceeded, was the sacred one of regard to the wil o f the proprietor. Of this in­ numerable instances will occur to your Lordships; the respondent shall only mention two very late ones. The first is that of the succession of Sinclair of South- dun, determined within these two or three sessions. In 1 7 5 8, 1 758, Southdun accepted of a disposition to the property as well as superiority of certain lands, and thereby dest in ed them to a long series of heirs, different both from those on whom they had been settled by a former deed in 172 6, and from those on whom they had been settled by a subsequent deed executed in 1747. That deed 1758, so destining the lands, was transmitted to Southdun himself, was carefully revised by his lawyers, was ac­ cepted by him, and kept in his own custody for several years before his death; yet your Lordships were clearly of opinion, all circumstances considered, that it did not import any alteration of the prior settlements, as such al­ teration could not be presumed, and it was natural to ascribe the accepting of the disposition to a different motive. In the famous cafe of Carleston, a charter and insestment, on which the lands were possessed, expede by the proprie­ tor long after a prior disposition that settled the same indi­ v idua l and principal subject whole and entire on a different series of heirs, was nevertheless found to import no al­ teration of the succession, because that did not seem to be the intention of the parties in expeding the charter and insestment. And the like judgment was also given in the case of Sir Thomas Nicolson’s succession, where two different charters and inses tments, expede, too, one after another at a distance of years by an absolute proprietor, were not re­ garded in competition with another deed expede fo r the purpos e of settling the same lands. It cannot be pretended a substitution is in all cases evacuated the moment the subject is uplifted, which, by the bye, would not apply here, as the money remain­ ed always in the hands of the Lord President: For where the institute cannot disappoint the substitution, though third third parties may be in tuto to contract with him, yet he is still obliged to the substitutes to reimploy, and their right is indisputable to the surrogatum, unless he has not only the power, but also the intention of making an al­ teration; otherwise a substitution might even be evacu­ ated by the mere execution of a testament, which will not be pretended. And this very case is decided by the profoundest au thority of which the law of Scotland can boast. “ For the same reason, if an executor, instead of receiving payment, takes a new bond from a debtor of the de­ ceased with a cautioner, and discharges the original bond, this new bond, being a surrogatum in place of the former, will be considered in equity, as part of the effects of the deceased." Princ. of Equity, p. 128. Accordingly, in the case of Mr. Murray’s succesio n, effects belonging to Sir James Rocheid, (whose executor Mr. Murray was named) for which he had taken new Securities, were found to descend, not to those in right of Mr. Murray, but to the heirs of Sir James Rocheid. 4th Jan. 1744. Had Grizel Gordon intended to alter, it cannot be doubt­ ed that She would have made a total alteration, which she has not done; for almost all the effects remain in the same condition in which they were at Mrs. Duncan’s death: indeed, the very title, on which the petitioners insist in this process, and claim this very bond, supposes her to have died intestate even quoad this bond; for their title is a testament dative, or confirmation ab intestato, and how it can in that cas e be maintained, at least by them, that she died testate, is Submitted. These observations afford a Sufficient answer to an ob­ servation frequently repeated in the petition, “ That Grizel Gordon confirmed the old bond,” a circumstance which which can have no earthly influence on the question; for 1mo, Confirmation cannot s eriously be pretended to have the effect of altering a prior destination; and it was formerly admitted by the petitioners, that some further act was necessary to produce that effect, which act it is incumbent on them to prove was actually made by Grizel Gordon, and an alteration being, so far as it goes, equivalent to a testamen, cannot at all be pres umed; much less can it be presumed from an ordinary act, like the taking of a bond from the debtor, which can only be ascribed to the common and ordinary motive and view had in taking such deed, 2do, Grizel Gordon did at the utmost no more than vest the subject in herself for the purpos e o f executing the testament; and as a person could not be understood, by barely making up titles by service, or otherways, to lands or heritages, to evacuate or disap point even a s imple destination; so neither can confirma­ tion have that eff ect in the case of moveables. Indeed, an executor is not only intitled to confirm, but even bound to get the old debts or bonds renewed by new secu- rities taken in his ow n name; yet it cannot be pleaded, that these new securities would have the least eff ect on settling or altering the destination of the subjects; but Grizel Gordon, like every other executor, was still ac­ countable, after confirmation, to all concerned, particu­ larly to the trustees in whom the fee and property were immediately vested, and she found caution to that ef f ect; which leads the respondent to observe, 3tio That as Gri­ zel Gordon entered executor under the settlement made by Mrs. Duncan, she was obliged to submit to that set tlement as it stood, and she had no power to do any act or deed by which the trust created by her aunt should be defeated, or the trustees deprived of the powers properly vested in them. The The case therefore is, as was well observed, something like that of the pupilaris substitutio sed among the Ro­- mans; and it was also well compared to the case where a provision is made to children, or others, under the jus accres cendi, payable at their majority or marriage: there the right of the child does not become compleat, and he has no power to dispose of the money till he attains to majority or marriage; but upon his predeceasing, the surviving children take the provision qua substitutes to him. In like manner here, the right of Grizel Gordon could not become compleat or absolute before her marriage, and she had no power of disposin g of the money before that time; but the respondent being substituted, in the event that has happened, must take the money in conse- quence of the will of the defunct, as Grizel Gordon died before the condition was purified in her favour, and she was thereby vested with absolute power over it. In respect whereof, &c. GEO. WALLACE.