James Buchanan and Others - Bosanquet - Greenshields v. Mrs Crawford or Mollison, Respondant. - Monocreiff - Cunningham - Gillies [1824] UKHL 2_Shaw_445

UKHL

James Buchanan and Others - Bosanquet - Greenshields v. Mrs Crawford or Mollison, Respondant. - Monocreiff - Cunningham - Gillies

[1824] UKHL 2_Shaw_445

Circumstances under which it, was held, (affirming the judgment of the Court of. Session); That a sum, of money paid by a testator to persons to whom he had bequeathed one-half of his effects, was an anticipated payment of their provision, and not a donation.

Stephen Rowan , who had been the master of a merchant vessel, and afterwards a partner in a mercantile house in Port Glasgow, married Mrs Margaret Crawford about 1764. Partly by his own exertions, and partly by the most-penurious, habits, he realized upwards of L.28,000. No contract of marriage had been executed, and he had no children. His nearest, relations were the family of his niece, Jean Miller, wife of George Buchanan, merchant in Glasgow. In August 1805 he executed a trust-deed of settlement, with the consent of his wife, by which he conveyed to her and certain other persons, chiefly her relations, (among whom was Mr James Crawford), as trustees, his whole estates, real and personal. By this deed, after appointing certain specific legacies to be paid, he directed the trustees “to dispose of the remainder and reversion of my said estates, real and personal by paying one-half thereof to my said wife; whom failing, to her disponees or assignees; whom failing, to her nearest heirs whatsoever: And, of the other half, to pay L. 1000 to the said Jean Miller, wife of George Buchanan, at the expiry of one year after my death, for her liferent thereof, and to be at her disposal to and among her lawful children; but the rest of said half shall be liferented by my said wife, if she survive me, during all the days of her life, and thereafter by the said Jean

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On the 12th December 1812 Mr Rowan added a codicil to the trust-settlement, by which he nominated additional trustees, but in other respects confirmed the deed; and this codicil, as well as the deed itself, was signed by his wife. In the month of October 1813 Mr James Crawford, one of the trustees, received from Mr Rowan four bills, which were then current, amounting to L. 4270, payable by certain mercantile companies in Glasgow, blank indorsed by Mr Rowan, and which he requested Mr Crawford to deliver to Mr Buchanan. No written instructions were given to Mr Crawford, but it was stated by him in a judicial declaration which he emitted by order of the Court, that Mr Rowan told him that he intended these bills as an anticipated payment of what Mr Buchanan and his family were to receive at his death, as at this time two of Mr Buchanan's sons were about to enter into commercial business, and the money might be useful to them; and that he further

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“With grateful hearts we, Jane Miller your niece, George Buchanan her husband, James Buchanan their eldest son, George Buchanan, their second surviving son Margaret Buchanan their eldest daughter, Jane Buchanan their second daughter, and Elizabeth Buchanan their youngest daughter acknowledge to have received from you, Stephen Rowan, Esquire, by the hands of James Crawford Esquire, the following bills :—viz.

“Hopkirk Cunningham and Company's acceptance to you, dated 17th May 1813, at six months,

L.560 Graham, Bell and Company's acceptance to you, 17th May 1813, at six months, for

1575

Hopkirk Cunningham's acceptance to you at twelve months, for

560

Graham, Bell and Company's acceptance to you, 17th May 1813, at twelve months, for

1575

making together the sum of L. 4270 sterling; for which sum we become bound to pay you interest when required, agreeably, to your desire. We are, with sincere gratitude and respect, Sir, your obliged humble servants, Jane Miller, George Buchanan, James Buchanan, George Buchanan, junior, Margaret Buchanan, Jean Buchanan, Elizabeth Buchanan X her mark. Glasgow, 1st October 1813.”

This acknowledgment was enclosed in the following letter by Mr Buchanan to Mr Rowan, and thereupon delivered, to Mr Crawford :—

by Mr Crawford that you continue considerably indisposed. I hope we shall hear of a favourable turn. With the kindest respects of Mrs Buchanan and all my family to you and Mrs Rowan I am, most respectfully, Sir, your much obliged and humble servant, George Buchanan.”

“Glasgow, 1st October 1813. Stephen Rowan, Esquire. Sir, —I received to-day from the hands of James Crawford, Esquire, four bills amounting to L.4270 sterling, which is gratefully acknowledged by Mrs Buchanan, myself, and all our family, which is enclosed. I do not know, Sir, how to find words to express my sense of this generous kindness bestowed by you on Mrs Buchanan and my family in such handsome terms. It is a rare instance of kindness bestowed in the lifetime of the giver and this we reverence with sentiments which we cannot express, We also feel our obligations to our highly respected and kind friend Mrs Rowan. It has been with sincere regret that I have been informed

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This letter, with the enclosure, was carried by Mr Crawford to Mr Rowan, and soon there after Mr Buchanan went to Port-Glasgow, and waited upon Mr Rowan to express his gratitude. On that occasion it appeared, from a declaration which Mr Buchanan emitted by order of the Court, that when he mentioned the object of his visit, Mr Rowan stated that he had made his will some time ago; and being then at an advanced age, and in bad health, he burst into tears: that Mrs Rowan, who was present, said, that it had been done to save expense, and that Mr Rowan had left his property betwixt her and Mr Buchanan's wife: that in the course of conversation Mr Rowan again introduced the subject of his will, in which he said, if it was to be made again he would insert Mr Buchanan as a trustee, and hoped that he would not take it amiss that he was not named in the will Within a few days thereafter Mr Rowan died and the trustees thereupon took possession, and made up inventories of his effects, in which they included the amount of the bills which had been delivered to Mr Buchanan, and which they stated they were obliged to do by the Stamp-office, in consequence of the terms of the acknowledgment. A question then arose between Mrs Rowan and the family of Mr Buchanan, as to whether these bills were to be considered as an anticipated payment of their half of the effects as provided by the settlement, or as a pure donation. The former proposition was maintained by Mrs Rowan, while the latter was asserted by Mr Buchanan and his family. To settle this question the trustees raised a process of multiplepoinding, in which claims were lodged for these parties. Before any judgment was pronounced Mrs Rowan died, and was succeeded by the respondent her sister, Mrs Mollison, as executrix.

On advising the cause, Lord Pitmilly found, “that the bills cannot be imputed in payment of the provisions to which Mr Buchanan and his family have right by the settlement of Mr Rowan; and that they are entitled to these provisions over and above the amount of the bills, in respect it has not been averred and offered to be proved by competent evidence on the part of the competitor, Mrs Euphemia Crawford or Mollison, that on the 1st October 1813, when Mr Buchanan and his

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The respondent, Mrs Mollison, having lodged a representation, the Lord Ordinary found, that although Mr Crawford, from his interest in the succession, and relationship, was inadmissible as a witness, yet it was proper that both he and Mr Buchanan should be judicially examined; which was accordingly done. Thereafter, on advising memorials with the declarations, his Lord-ship recalled the above interlocutor, and in respect of the nature and circumstances of the case, reported it on informations, to the Court. On the part of Mr Buchanan and his family, it was maintained, —

1. That as the bills had been delivered blank indorsed during the life of Mr Rowan, the presumption was, that they were intended as a donation; that as his settlement must be considered as the last act of his life, and consequently posterior to the delivery of these bills; and as by that settlement they were entitled to one-half of what he should the possessed of, it was impossible, consistently with the established principles of law, to regard the delivery of the bills as an anticipated payment of part of that half.

2. That this was confirmed by the circumstances of the case; the family of Mr Buchanan being the only blood-relations of Mr Rowan, and as such his natural heirs; and he having, without objection, received and kept the letter of Mr Buchanan, in which the act was described as one of great generosity; and as he must have been fully aware that they knew nothing of his will, and must consequently have regarded it as a simple donation. And,

3. That although it was true that, by the deed of settlement, the fee of one-half was to go to Mrs Rowan, and she was to enjoy the liferent of the other, and had in consideration thereof renounced her legal rights, yet he had reserved power to dispose

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On the other hand, if was maintained by Mrs Mollison, —

1. That the terms of acknowledgment and relative letter, (which formed the only written evidence), were entirely exclusive of the idea that the bills were meant as a donation, and that the only consistent view of the case was, that they were intended as an anticipated payment; that the settlement had been made on the footing of an equal division between Mrs Rowan and the family of Mrs Buchanan; that the half to be payable to the latter was to be subject to her liferent; that Mr Rowan had recently, prior to the transmission of the bills, confirmed his settlement by the codicil, so that it could not be alleged that he had changed his intentions; but if the theory of Mr Buchanan and his family were correct, he must have altered his views entirely, by allotting to them more than a seventh part of his whole effects, and depriving his wife of the liferent of this part.

2. That it was farther established by the declaration of Mr Buchanan, that the bills were a mere anticipated payment, because he admitted that, when the subject was mentioned to Mr Rowan, he immediately alluded to his will and burst into tears, thereby shewing that he considered the delivery of the bills as connected with his will, and bearing reference to his death, which he saw was rapidly approaching. And,

3. That Mr Rowan, consistently with the obligations which he had Undertaken to his wife by the deed of settlement to which she was a party, could not make such a donation.

Lords Craigie and Bannatyne were of opinion that the bills were to be considered as a donation, while the Lords Justice-Clerk, Glenlee and Robertson, held that they must be regarded as an anticipated payment; and the Court, therefore, on the 22d February 1822, “found, that the amount of the four bills in question falls to be imputed in part payment off the provisions to which Mr Buchanan and his family have right by the settlement of Mr Rowan, and that they are not entitled to these provisions over and above the amount of the bills and remitted to the Lord Ordinary to proceed accordingly.” *

Mr Buchanan and his family appealed, but the House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors Complained of affirmed.”

Footnote

* See 1. Shaw and Ballantine No. 390.

Appellants' Authorities —Stewart, July 24. 1623, (11,439) Stirling, June 20. 1704, (11,442). Respondent's Authorities. —(3.)—3. Stair, 843.: 3. Ersk, 9. 16.; Sorlies Dec. 5. 1771, (5947.); Hogg, July 16. 1804 (No. 2. App. Legitim.)

Solicitors: J. Richardson— A. Mundell, —Solicitors.