Petition 1766

Unto the Right Honourable,the Lords of Council and Sesion, T H E P E T I T I O N O F HSeSs i ossosn, Grandchild o f the deceast James Binning Portioner o f Torphichen, and o f John Hamilton Mason in Lauriston, her Husband, for his Interest; Humbly s heweth, T HAT of this date, "James Binning portioner of Tor-phichen executed a deed of settlement of his af­fairs, providing liferent provisions to his wife, and likewise provisions in favour of his younger children: The deed proceeding upon the narrative of his desire so to order his affairs, that no differences might a- rise betwixt his wife and children; nominates and appoints his wife Helen Glendinning his sole executrix, with the only power of intromitting with, uplifting, receiving, and dispo- sing upon whatever goods, gear, or moveable estate should pertain to him at his decease. The deed burdens her with the payment of his debts, and likewise with the mainte­ nance, education and aliment of Patrick and Margaret B innings, his younger children, all the days of Helen Glen-dining'sdinning^ dinning's life; and it further burdens her, with an annuity of 1oo merks, and a legacy of some trifling moveables, to James his eldest son. Thus far the settlement with regard to the liferent pro- visions in favour of the wife: The deed upon the narra­ tive of the reasonableness that his younger children should be suitably provided after the death of their mother, then proceeds, with the free and full consent of James Binning his eldest son and heir, to bind and oblige himself, his heirs and successors in his lands and heritage, to content and pay to Patrick and Margaret B innings, his younger children, the sum of 500 merks Scots each, against the first- term of Whitsunday or Martinmas after the expiry of year and day after the death of his s pouse, with penalty in case of tailzie, and the due and ordinary annualrent after the term of payment. And then is a clause of the following tenor, “ And fail­ ing either of my saids children by death, before their attaining the years of majority, their said portion o f 500 merks is hereby declared to pertain equally to the said James my eldest son, and the surviving child, de­ claring thir presents to be in full satisfaction to my said children, of all they can ask or crave of me, or in or by my death, except good will allenarly: And further, declaring thir presents shall have the force of a delivered evident, albeit the same shall be found in my custody the time of my death, and shall be as sufficient to my said wife and younger children, as if a separate disposi- tion and bonds of provision were delivered to my said spouse and younger children respectively, whereanent, and all other defects herein, dispenses for now and e- ver.” Soon after the execution of this deed, Patrick Binning, the second son, married, with the consent and approbati­ on of his father; but there was no contract of marriage, * nor nor no settlement made by the father upon the wife of Pa­ trick, or the children to be procreated of the marriage; it being the understanding of all parties, that the provision of 500 merks was all the father could afford to Patrick or his children, which sum was already secured by the deed of provision above recited. Patrick did not long survive his marriage, having died many years before either James Binning his father, or He­ len Glendinning his mother, and he left the petitioner the only issue of the marriage. Upon her father’s death, the petitioner was carried home to the house of her grandfa­ ther, and there kept and entertained by him as a bairn of his house, till the day of his death; at which time no o- ther provisions were made upon her by her grandfather, except in so far as she was understood to have a title to the 500 merks, in the right of her deceased father. James, the eldest son of the petitioner’s grandfather, and the defender in this action, thought the provision of 500 merks rather too liberal in favour of the petitioner, and urged his father to restrict it to a sum of 300 merks; and parti­ cularly, when his father was on death-bed, he went so far ' as to cause to be executed a deed in those terms, in the view of its being Signed by his father; but the father re­ sisted those solicitations, and declared, if any alteration was to be made, he would rather increase than diminish the provisions in favour of his grandchild; and in those sentiments he died, without making any alteration on his settlements. During the lifetime of her grandmother, the petitioner had no claim for the 500 merks, as it was subjected to a liferent in her favour; but upon her death in the 1762, the petitioner brought an action against her uncle James, for the payment of this sum, before the sheriff of Linlith~ gow, where, after some litigation, she prevailed in her claim. An An advocation was obtained, which coming before the Lord Hales Ordinary, his Lordship, of this date, pronoun­ ced the following interlocutor: “ Having considered the memorial for Helen Binning pursuer, and the memorial for Ja mes Binning defender, together with the testament produced, advocates the cause, affoilzies the defender, and decerns.” And upon a representation praying an alteration of this interlocutor, he, of this date, “ refused the desire thereof, and adhered to his former interlo­ cutor.” There were two separate defences pled before the Lord Ordinary against the petitioner’s claim; 1mo, It was said that the term of payment being suspended till the death of Helen Glendinning the mother, made the provision conditi­ onal, and not exigible, by the predecease of Patrick to his mother, 2do, It was said, that the deed was of a testa- mentary nature, and therefore, fell, by the predecease of Patrick, to his father, upon the principle, morte legatarii perit legatum. With regard to the first of these defences, it will occur to your Lordships, that the doctrine upon which it is founded, does not apply to the present case; for the term of payment suspended to a future day, only renders the obligation conditional, when it is uncertain whether the day of payment shall ever exist, dies incertus pro contitione, habetur non dies certus: Now, in the present cafe, it is im- posible to say there was any uncertainty as to the day of payment, unless it can be maintained, that it was uncer­ tain whether Helen Glendinning should die. The cases of Edgar contra Edgar, July 1665, and Bel- ches contra Belches, 22d February 1677, do not apply; for in those cases, there is a clear uncertainty whether the male shall ever arrive at the age of 2 1, or the females to the age of 18; and therefore, the brocard of law does most strict­ ly apply. And And even in cases where the term of payment was fixt to a future day uncertain, such as the creditor attaining to a certain age; yet, when the circumstances of the case clearly show, that the future day was not adjected as a condition of the obligation, but as prerogative termini s o- lutionis, your Lordships have given effect to the deeds of the creditor in such an obligation: For example, a person by his bond becomes bound to pay 1000 merks to his ne­ phew at his age of 21 years, and to aliment him in the mean time; the creditor dying before the age of 21 years, left legacies; and the legatars having pursued for payment, the court found the bond to be pure, and not conditional, and decerned the defender to pay the legacies, the legatar secu- ring him pro tanto against the defunct’s nearest of kin, which was the quality of the bond, 25th November 1686, Kelso contra Maccubbie of Knockdoland D ict. vol. 1. p. 4 24 In general, the petitioner must observe, that in all cases where the dies incertus habetur pro conditione, the uncertain­ ty of the term arises not from an uncertainty, whether the creditor shall ever arrive at a day certain, but where there is an uncertainty, whether the day itself shall ever arrive: It is perfectly uncertain in itself, whether an infant shall ever ar­ rive at the years of majority; but there is no uncertainty in a term fixed to the period of a person’s death, because that day must undoubtedly sometime happen, altho’ it may be uncertain the precise day when it shall happen. There seems, therefore, to be no foundation for the de­ fender’s argument, when he maintains, that there was in this case a dies incertus, because it was uncertain, whether Patrick would survive his mother; for whether he survi- ved her or not, or whether he arrived at the term of pay­ ment or not, made no uncertainty as to the actual existence of the term of payment. If the defender’s doctrine was to hold true, every obligation, however pure, where the terms of payment were suspended, would resolve itself in- B to to a conditional obligation: For instance, a bond of provi- sion granted to a son, payable some years after date, it is uncertain whether the son may survive that date; and yet it could not be disputed that the obligation was pure, altho’ the term of payment was suspended; Campbell of Calder contra Ruth Pollock, 7 th December 1717, Dict. vol. 1 p. 425. > * As, therefore the defender seems to misapply the bro- card of law to this case; so, from an examination of the deed itself, it would appear, that the father clearly un- derstood a pure obligation, and only a suspension of the term of payment. For your L ordships will observe, that the deed makes provisions for a return to the heir, up­ on an event which might exist at a period previous to the death of Helen Glendinning, namely, the years of majority; it is provided, “ That failing either of the children by death, before their attaining majority, their said 500 merks is to pertain equally to his eldest son, and the fur- viving child. • Now, by this clause, it seems obvious, that the father understood a right to be immediately vested in his young­ er children, or else he never would have stipulated a return of a right, in a certain event, from persons in whom there was vested no right, which could return. A clause of return in any deed presupposes a right in the person from whom, in a certain event, it is to return; for, were it otherways, it would be absurd to stipulate a return. This clause there­ fore shews, that tho’ the term of payment, or the jus exigendi was postponed to the mother’s death; yet it was under- stood, that the right, or jus crediti, was ab ante vested in the children, and only returned to the heir and other child if they died before majority; but transmitted to their heirs’ i f they survived that period. Upon this clause another observation arises, namely, That i f the defender’s construct ion is well founded, this is the the most extraordinary clause in favours of an heir, that will, perhaps, be met w ith; for, agreeable to the defen­ der’s argument, if Helen Glendinning survive the majority of her younger children, which, from the circumstances of the case, was natural, and accordingly did happen; then only the half of the younger childrens provisions was to return, if they died before majority; and yet, if they survived it, not the half only, but the whole was to return to the heir. This may be a true construction, but it is, at least, unusual, for the right o f the heir to increase with the age of the youger children. But further, the nature of the deed, and the intention of James Bing, is fully illustrated by attending to the circumstances in which he seems to have left his affairs: He appears to have given a liferent of his whole moveable effects by this deed to his wife; and by an after deed he likeways left her the liferent of his heritage, and the pro- visions to the younger children were to be paid by his heir; so that when this circumstance is attended to, it re­ moves all ambiguity with regard to the intendment or the clause suspending payment till after the mother’s death, for till that time the heir had nothing wherewithal to pay these provisions. This, therefore, may be a very good rea- son why the provision to the younger children should not be exigible till after the mother’s death; but it can afford no reason why the right itself should be conditional, or why the jus crediti should not be immediately vested in those younger children. So that upon the whole of this point, it is humbly sub- mitted, that the claim of Patrick for the 500 merks was a pure right, and not a conditional claim; and as the right was vested in himself, so in the same manner it must de- scend to the petitioner his only child and heir. The next point to be considered by your Lordships, is the second plea maintained by the defender, namely, that this this 5oo merks being of the nature o f a legacy in favours of Patrick, must fall by his predeceasing his father, who was the testator of the legacy. But, in the first place, the petitioner begs leave to dis- pute the foundation upon which this defence proceeds, for i f rightly advised, the deed in question, far as the pro- visions to the younger children are concerned, is not of a testamentary nature, nor the 500 merks left to each of the younger children to be considered as of the nature of a le­ gacy. The essence of a legacy consi sts in its being of a gratuitous donation, but in the present case it is onerous, in so far as those younger children discharge the claim of legitim, and every other right they could crave by the de- cease of their father. And altho’ the first part of the deed has more the ap­ pearance or a testamentary nature, yet the latter part of it which concerns the provisions in favour of the younger children, bears the appearance of a simple bond o f provi- sion in favour of each of those younger children, under certain clauses and conditions therein contained, such as a clause of return in favour of the heir, if the children should predecease majority, and likeways a clause suspending the term of payment during the life of the mother, for the reason already mentioned. It is true, the deed is not delivered to Patrick, for this good reason, that his mother and sister were likeways con- cerned in it; and therefore, as a common evident, it was reserved by the father for the behoof of all concerned; but i t contains no power to alter, nor no power of revocation but, on the contrary, contains this remarkable declaration: That their presents shall have the force of a delivered evi­ dent, albeit the same shall be found in my custody the time of my death, and shall be as Sufficient to mySaidwfe and younger children, as if a Separate disposition, and bonds of of provis ion were delivered to my said spous e and young a children respectively." This clause seems to import something stronger, upon the part of the father, than merely a testamentary settle- ment; he seems to have considered a right as immediately vested in his children; and therefore, it is humbly hoped, that your Lordships will give the same force to the deed now in question, as if a bond of provision had been formally exe­ cute and delivered to Patrick; more especially, as in que- stions upon deeds amongst country people, and executed by country writers, your Lordships will chiefly regard what appears to have been the will and intention of the maker. But in the second place, supposing this deed to be of a tes­ tamentary nature, and the provision of 500 merks to be of the nature of a legacy, the petitioner does not apprehend it will follow as a consequence, that the legacy in this case would fall by the predecease of Patrick to his father. The defender quoted some decisions to establish the ge­ neral proposition, particularly, the case of Marjorybanks contra Marjorybanks, 1s t December 1752, where your Lordships re- fused to sustain the claim at the instance of the sisters, as nearest of kin to Alexander Marjorybanks their brother, against the elder brother, for a provision which had been made to Alexander, in respect that Alexander died before his father the maker of the provision. Were the petitioner to be extremely critical, he might perhaps be apt to discover some particular specialities in that case; but as at present,the petitioner intends to Support his claim upon a more general doctrine, it is only desir ed of your Lordships to attend to this circumstance, that in the case of Marjorybanks, and indeed in every other case of the same nature, so far as the petitioner has observed, the claim is made at the instance of extraneous executors, and not at the instance of the children of the legatee; and the peti­ tioner is advised, that this circumstance differencing this G from from these other cases, creates a very great variation in the argument, and will have considerable influence on the judgment of your Lordships. The governing rule of succession is undoubtedly the in- tention of the deceased person, either exprest or presumed. It is upon this principle, that by the laws of all nations, the intestate succession gives way to the testamentary will of the person however whimsical or capricious; and upon the same principle the intestate succession is founded, pro­ ceeding upon what is supposed to be the will of the person himself, if he was living, and in a capacity to express that will; and under the guidance of the same rule, the law­ yers of all countries, and of all ages, in the interpretation of the last wills and deeds of men, have given way to those rational and well founded conjectures, which must often occur in explaining and enlarging the sense of deeds beyond the strict words, in conformity to a manifest pre­ sumed intention. A remarkable example of this occurs in the famous text of the Roman law, which the petitioner now takes notice of, because so precifely applicable to the present case. It is l. 102. Pand. de. cond. demonstrat. “ Cum avus fi- lium ac nepotem, ex altero filio haeredes instituisset, a ne- pote petiit, ut fi intra annum trigesimum moreretur, he- reditatem patruo suo restitueret: Nepos liberis relictis,, in-- tra aetatem suprascriptam vita decessit: Fideicommissi conditionem, conjectura pietatis, respondi defecisse, quod minus scriptum, quam dictum fuerat, inveniretur.” Altho' this law makes no mention of the great-grandson. still the Roman lawyers had no doubt to make that obvious extension of the words of a settlement, in order that they might bend to the presumed will and intention of the te- stator; and under the authority of this law, the petitioner will be forgiven to maintain, that the principle of a lega­ cy, falling by the predecease of the legatee, does not apply to to the case of a father dying and leaving children, but that ex conjectura pietatis, in the language of the Roman law, the provision made by a father in favour of a son, will be ex­ tended to a grandson; for there can be no principle on earth, which could lead a father to make a provision in fa­ vour of a son, and at the same time mean upon the predecease of that son, to leave his grandchildren destitute orphans. This principle therefore, founded on human nature it- self, clearly differences the case of a claim, made at the in- stance of the issue of a legatee’s own body, from all those o- ther cases alluded to by the defender, which concern claims made by the extraneous executors of the legatee. And indeed, this doctrine seems already to be adopted into our law; for in a case, magistrates of Montros e contra Robertson, 2 1st November 1738, “ One having lent a sum, and taken a bond for the same, payable to himself, and to his children mentioned nominatim in the bond, e- qually and proportionably amongst them in fee, with this provision, that in case of the decease of any of the said children, the foresaid sum shall be equally divided amongst the survivers; the Lords found the condition si s ine liberis implied, and that the share of one of the children, who deceased before his father, did, notwithstanding the substi- tution, descend to his children’' If therefore your Lordships are satisfied that the doctrine now contended for, is part of the law of Scotland, you will be much more inclined to give force to it in a case of this kind, where the presumption of law is so strongly aided by the circumstances demonstrative of the real will and inten­ tion of the petitioner’s grandfather in this case. You have heard that not only in her father’s contract of marriage was no provision made by her grandfather in favour of the issue to be procreated of that marriage, but even after her father’s death, no provision was made for the petitioner herself, altho’ alimented and entertained by her grandfather while alive, all which could proceed from nothing- else else, but the clear conviction and satisfaction of the grand­ father, that the provision of 500 merks was to descend to the petitioner his grandchild. But what puts this out of all doubt, is the circumstance likeways already mentioned, namely, the earnest intreaties and solicitations of the defender with his father to restrict the petitioner’s provision from 500 to 300 merks, and the obstinate resistance of his father to yield to those solicita- tions, declaring, that if he was to make any alteration, he would rather increase than diminish the s um. So that, upon the whole, if this petitioner shall be so un­ fortunate as to receive nothing from the generosity of her grandfather's will, she must suffer by a quirk of the law, contrary to his certain and declared intention. May it therefore pleas e your Lords hips to alter the Lord Ordinary's interlocutors, and to f ind, that the petitio­ ner has right to the 500 merks provided to her deceast father by the deed 1733. % According to ju stice, HENRY DUNDAS