Jacob Yeats - Lushingto - J. Parker. v. Alexander Thomson and Others - Lord Advocate (Murray - Kenyon Parker. [1835] UKHL 1_SM_795

UKHL
Jacob Yeats - Lushingto - J. Parker. v. Alexander Thomson and Others - Lord Advocate (Murray - Kenyon Parker.
[1835] UKHL 1_SM_795 · 1835-06-05
Jacob Yeats , Appellant—Lushington—J. Parker. v. Alexander Thomson and Others, Respondents—Lord Advocate (Murray)—Kenyon Parker.

[ 5th June 1835 .]

Ld. Mackenzie .Subject_ Foreign — Deed, Construction of — Clause.A domiciled Englishman, who was debtor in an heritable bond over a Scotch estate, the contents of which bond he had consigned in the Bank of Scotland, having executed an English will, by which he declared that the consigned sum should belong to certain trustees; having thereafter executed a Scotch trust deed and settlement, in which he stated that he had, in a separate will as to his property in England, directed that the consigned sum should be transferred to his trustees; and having thereafter executed another English will, which had the effect generally of revoking the first will, and which bequeathed all his personal estate to an executor:—Held (affirming the judgment of the Court of Session,) 1. That the Scotch Court had a right, and were bound to look at the first will in the same way as it would have been looked at in England, in order to discover the testator's intentions as to the consigned sum. 2. That the deeds contained a sufficient declaration of the intention of the testator to appropriate the consigned sum to his trustees; and, therefore, that the trustees fell to be preferred to that sum, and not the executor.The late James Yeats was a native of Glasgow, but left Scotland when young, and became a merchant in London. In the year 1815 he purchased from Mr. M'Donald of Lynedale the island of Shuna in

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He at the same time executed and delivered a personal bond which bore this narrative:—Considering that Alexander M'Donald, Esquire, of Lyndale, by his disposition bearing date the 24th day of March 1815, has sold, &c. to me all and whole the lands and island of Shuna, &c., at the price of 10,500 l ., and that I have made payment to the said Alexander M'Donald of the sum of 5,000 l . to account of said price, and that the balance of the said price is, by the said disposition, declared to be a real burden affecting the said property aye and until full payment thereof in manner therein specified, and it was covenanted and agreed upon that I should grant bond for the balance of said price;—he therefore bound himself to pay to the said Alexander M'Donald of Lyndale, his heirs, executors, or assignees, the sum of 5,500 l ., being the balance of the price of the said lands and island of Shuna, and that at the term of Candlemas 1819, with a fifth part more of penalty in case of failure, and interest of the said principal sum, from and after the term of Candlemas 1815, to be paid half-yearly at the terms of Lammas and Candlemas, &c. And it is expressly declared, that notwithstanding the payment of the said principal sum is postponed to the term of Candlemas 1819, that it shall be in the power of me, the said James Yeats, and my foresaids, to make payment to the said Alexander M'Donald and his foresaids of the said principal sum in such proportions and at such periods,

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The reason for withholding payment of the balance, and granting bond for it, arose, not from any inability by Mr. Yeats to pay the amount at the time, but in

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This bond was, in 1817, assigned, with the real burden, to the Leith Banking Company. On the term of payment approaching, a correspondence took place between the Leith Bank and the law agent of Mr. Yeats, in Edinburgh, as to depositing the money in their bank, as the titles were not in a state to admit of payment; but Mr. Yeats preferred placing it in the Bank of Scotland, in name of his friend Mr. Samuel Rose. This was accordingly done at Candlemas 1819, (2d February,) and on the following day Mr. Yeats's agent wrote to the agent of the bank in these terms:
“Agreeably to what I stated to you, I wrote to Mr. Rose, and communicated to him your wish, that the money should be paid into your bank. I have not yet seen or heard from Mr. Rose in answer; but, in pursuance of the arrangement with that gentleman, the amount of Mr. Yeats's bond, with interest, was paid into the Bank of Scotland yesterday, before three o'clock.
While I am very desirous to close this matter without a day's delay, and with every wish to prevent any unnecessary trouble to you and Colonel M'Donald, I am so situated, that I do not feel at liberty to act differently from that line of procedure which the state of matters appears to render necessary. The estate of Shuna appears to have been overloaded with debt, and it is quite evident, both from the nature of the thing, and from the express terms of the bargain, that there must be legal evidence of the extinction of the debt produced previous to payment

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All, I presume, which can be asked of Mr. Yeats, is payment of the contents of his bond, and interest up to yesterday, and which I was ready to pay. Matters not being ready to close the transaction, Mr. Yeats had no alternative but to consign the money, and which has been accordingly done. Any loss arising from interest, subsequent to yesterday, surely cannot attach to Mr. Yeats, and therefore your recourse will be against Colonel M'Donald. The bond is quite explicit, in the point that all incumbrances must be cleared before payment, and in so far as this is not done, Mr. Yeats is entitled to retain from the price. He has, however, not the most distant wish to do so; but if he is obliged, for safety's sake, to do it, he cannot consent to keep the money and to pay five per cent., consequently it must be consigned. I am perfectly willing, however, to pay any sum to account, on a proper discharge, and on a sum sufficient to pay all apparent incumbrances and expenses being allowed to remain deposited in the bank.”Therefore, on 12th March, 4,000 l . were paid to the Leith Bank, and the balance, being 1,649 l . 2 s . 5 d ., was left in the Bank of Scotland. Mr. Rose being desirous to withdraw his name, the following memorandum was made between him and Mr. Yeats, on the 11th August 1826:—
“On the 2d February 1819 the sum of 5,649 l . 2 s . 5 d . sterling (supplied by James Yeats of Salcombe, county of Devon,) was deposited in the Bank of

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This sum was part of the price of Shuna in Argyllshire, which had then been lately purchased by Mr. Yeats from a Colonel M'Donald, and was retained by him till some defects in the title deeds of the property were removed, and certain stipulated agreements were fulfilled. It was lodged in the above bank, partly for security, and placed in Mr. Rose's name, partly in consequence of the distance of Mr. Yeats's residence in England,—but chiefly to show to M'Donald, or others concerned, that he (Mr. Yeats) derived no benefit whatever from the deposit, or by withholding the moneyOn the 12th March 1819 Mr. Yeats authorized Mr. Rose to advance 4,000 l . sterling, in further payment of the purchase money, to the Leith Banking Company, which had then, by assignment from M'Donald, become entitled to receive it. The balance left in the bank was therefore 1,649 l . 2 s . 5 d ., with the interest of the whole original deposit.Unwilling to continue longer in such a protracted trust, Mr. Rose has this day, with the consent of Mr. Yeats, given up the receipt or document granted by the bank when the deposit was made; and the latter has taken in his own name two receipts, one for the above balance of 1,649 l . 2 s . 5 d ., and another for 387 l . 12 s . 6 d ., the interest now due.Mr. Rose stands, therefore, clear of all concern in the transaction, and both parties have subscribed this memorandum explanatory of it.”

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In 1827 Mr. Yeats had a correspondence with his friend, Mr. Alexander Thomson, banker in Greenock, (afterwards named one of his trustees,) and on the 13th January wrote to him:—
“I have received the newspaper with the advertisement of the sale of Lvnedale. I wonder it has been retained so long. The deposit on account of Shuna (1,500 l .) is still in statu quo, and will for some time, I suspect, remain so. He can have no interest whatever in it; if he had, the very walls of the Royal Bank 1 would run some risk of being stormed.”

Again on 28th May 1827 he wrote to Mr. Thomson:—

“I had heard of Colonel M'Donald's death before. There is 1,500 l ., with several years' interest, lying, in my name, in the Bank of Scotland, till certain defects in the title deeds of Shuna are removed. The Leith Bank have an assignment of the sum, and it is odd that, though only 3 per cent. is allowed on the deposit, they seem to be careless about the business. He, the Colonel, could not, I suppose, have any interest in it; but why did not they push him to purge the titles ?”
In another letter to the same gentleman, dated 23d January 1828, Mr. Yeats says:—once said you, or a friend of yours, had some money connexions with this ripp. Does it at all concern you ? The principal and interest now lying in deposit must exceed 2,000 l . I think the Leith Bank has the right; but, if you wish it, I will give you all the intelligence I can.”
“My law agent in Edinburgh (for unhappily I am obliged to have one there, too, solely on account of Shuna and the late owner, M'Donald,) writes to me that there is likely to be litigation between the trustees of that gentleman and the Leith Bank, with respect to the part of the purchase money (1,500 l ., with interest,) which is deposited with the Bank of Scotland. I think you

Footnote

1 Mr. Yeats was under the erroneous idea that the money was in the Royal Bank, or rather, that the Royal Bank and the Bank of Scotland, which he called the Royal Bank of Scotland, were one and the same.

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In this state of matters Mr. Yeats, on 15th April, executed a will, at Salcombe in England: it was in these terms:—
“The last will of me, James Yeats of Salcombe, in the parish of Malborough, Devonshire, as it respects the island of Shuna, near the island of Luing in Argyllshire, which first-mentioned island is my sole property; I hereby appoint as executors or trustees of this my will Alexander Thomson, Esq., banker in Greenock Thomas Waller, Esq. of Crosslane, St. Mary's in the East London, wine merchant, and Mr. Henry Strong of Salcombe aforesaid, and their heirs and assigns, to whom I give and devise my said island of Shuna, with all its appendages, in trust to assign and convey the same, as soon after my decease as conveniently can be, and in the proper legal mode required by the Scotch law, to the Lord Provost and principal Magistrates of the city of Glasgow (my native place) for the time being, and to their successors for ever, in trust, to them and their said successors, for the uses and purposes herein-after mentioned; and in the interval between my death and such conveyance I authorize my said executors or trustees first mentioned to receive the rents and profits of the said estate, and to manage it in the manner they may think best, but to be accountable to the trustees last named for the net produce of what they do receive, after deducting, of course, the charges necessarily incurred.”

He then

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“As the island of Shuna appeared, from the public registers, to be greatly incumbered when I bought it in 1815, and the title deeds were in consequence very defective, a moiety of the purchase money was retained till these defects were purged, and there still remains a balance of 1,500 l ., with interest, amounting together to about 2,000 l ., deposited in my name in the Royal Bank of Scotland, for which I possess the bank's notes or receipts. My will is, that after my decease, these notes or receipts shall become the property of, and be indorsed or transferred by my executors in another will respecting my property in England, to my trustees, the magistracy of Glasgow; but that the money should remain where it now is till the defects in the title deeds, as above mentioned, are cured, or till the said trustees are fully satisfied with respect to the same, and till an entry is made with Lord Breadalbane, the superior of Shuna, to whom a yearly feu-duty of 8 l . is payable, of a new vassal after the death of Maclean, the existing one, according to a stipulation made by me with Colonel M'Donald, my predecessor in Shuna. These done, the sum held in deposit will become the property of his successors or assigns (for he is dead), and must accordingly be given up or transferred to them on discharging an heritable bond by me to the Colonel, for the unpaid price of the original price.”
On the 1st of May of the same year he made another will, in which, without revoking that of the 15th of April, he gave and bequeathed, subject to payment of certain annuities, “all my chattels and effects of whatever nature to Jacob Yeats, (the appellant,)

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“and I appoint executors of this my will, Thomas Waller of London, wine merchant, and Henry Strong of Salcombe, maltster, whom I have likewise named executors and trustees in a separate will which disposes of Shuna, and of a deposit of money which lies in deposit with the Royal Bank of Scotland, and is to remain there till certain defects in the title are cured.”
This will was found cancelled by a pen being drawn through it, and with this note subjoined:—

“Cancelled by another will. (Initd.) J. Y.”

In January 1829 he wrote to Mr. Thomson:—

“The death of my predecessor, M'Donald, has not produced, what I expected, a settlement of that part of the price of Shuna (1,500 l . with accumulating interest at 3 per cent.), which, for a series of years, has lain in deposit with the Bank of Scotland. I fancy, as it has not been settled now, there is some defect which cannot be cured till the decease of an old Highlander, the present vassal, and that the money must remain in deposit till then. Is there no removing it to your bank, and will it be any advantage to you ? I have the bank's note; but can it be legally done ?”

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Mr. Thomson replied, “The residue of the price of Shuna (1,500 l .) must remain as it is. At this office we are quite overstocked with deposit money, and would rather pay out 50,000 l . or 100,000 l . than receive any more.”He appeared to have been made aware by Mr. Thomson, that the will of April 1828 was inept to convey heritable property in Scotland, and, having got a form of a disposition, he himself wrote a draft deed, with a proper dispositive clause, in which he inserted the purposes set forth in the will of April 1828, and also this declaration:—and the other for 387 l . 12 s . 6 d ., being the interest which had accrued at the time of settling with the Bank in 1826. Now, if this transaction should not be closed before my death, I have, in a separate will, which respects my property in England, directed my trustees or executors in that will to assign or indorse the notes or receipts of the Royal Bank to my said trustees, the Lord Mayor and Bailies, to be kept by them in the same depository where they now are till the above-defects are cured, and till the entry stipulated to be made with the superior is implemented; or if the latter is called for before the titles are purged, it may, with no impropriety, be taken from the sum in deposit.”
“As the island of Shuna appeared from the public records to be greatly incumbered when I bought it from Colonel M'Donald, 5,500 l . of the price was retained by me, and lodged in the Royal Bank of Scotland till the estate was cleared of these defects in the titles. Of this sum there still remains, in the same depository, of principal and interest, about 2,000 l . Besides clearing the incumbrances, Colonel M'Donald is under obligation to me to enter at his expense a new. vassal with the superior Lord Breadalbane,—a new one instead of M'Lean the old one, who is still alive. This will cost M'Donald's creditors or successors a year's rent of Shuna. But the titles, that is, the incumbrances cleared, and the entry with the superior made, the notes or receipts I hold of the Royal Bank will become, with the interest due upon them, the property of Colonel M'Donald's creditors, or successors or assigns, and must be given up on delivery or discharge of my heritable bond for the balance of the price of Shuna. One of these bank notes or receipts is for 1,649 l . 2 s . 5 d .,

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It was not disputed that this deed effectually vested Shuna in the trustees. On the 17th of this same month he made a will, but which did not contain any clause of revocation. He there stated, “It may be proper to observe, that by a will made by me in this present month and year I have disposed of the island of Shuna in Argyllshire, Scotland;” and after various bequests there was this provision:
“As to my goods and chattels, wherever situated, I give and bequeath them to the said Jacob Yeats, his heirs and assigns, requesting, but not enforcing, his observance of some private instructions which accompany, but are not to be considered as any part of this, hereby appointing him, and his aforesaid, my sole executor and residuary legatee. It may be well to mention, that I include in this bequest my stock of cattle and other effects in Shuna, which are considerable.”
He died in August of the same year, whereupon the appellant obtained probate of the will dated the 17th

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The Lord Ordinary pronounced the following interlocutor:—

“(17th Jan. 1832.) The Lord Ordinary, having heard parties' procurators, &c., prefers the claimants, the trustees of the late James Yeats of Shuna, to the fund in medio, and the interest that has accrued thereon; and repels the claims for the other claimants; and decerns in the preference, and against the raisers of the multiplepoinding accordingly: Finds no expenses due to any of the claimants.”
Against this interlocutor the appellant reclaimed to the Inner House; and the trustees and the Leith Bank

Footnote

1 The bank stated that if decree were pronounced in favour of the trustees it would be satisfactory to them; and therefore it is unnecessary to state the pleas of the bank, as the judgment of the Court of Session preferring the trustees was affirmed.

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“(24th May 1832.)—The Lords, having considered this note with the three other reclaiming notes, &c., adhere to the Lord Ordinary's interlocutor; find the trustees of the late James Yeats entitled to the fund in medio, and the interest that has accrued thereon, and decern; with this explanation, that the said trustees shall apply the fund in medio, and interest thereon, in payment of the heritable debt over the island of Shuna, held by the Leith Banking Company, upon their clearing the incumbrances on the property, and performing any other stipulations that may be incumbent on them; and remit to the Lord Ordinary to hear parties thereon, and also as to the question, whether the expenses of the confirmation obtained at the instance- of the claimant, Jacob Yeats, as executor of the deceased James Yeats, and claimed by him, should be paid out of the fund in medio; and to hear parties thereon, and do therein as he shall see cause.” 1

Footnote

1 10 S. D. B. p. 569. In deciding the case Lord Glenlee said:
“I am for adhering, but with this qualification, that, after discharging any incumbrances remaining over Shuna, the fund should be paid over to the Leith Bank, who are now in right of Colonel M'Donald.”
Lord Cringletie .— “The fund having been arrested by the Leith Bank, I did not see what we had to do with the question of appropriation, or how the trustees can compete with onerous creditors having arrested. Lockhart's trustees' arrestments are posterior to those of the Leith Bank, and I would give decree in favour of the bank, subject to the burden of paying incumbrances.”Lord Glenlee .— “That is the more correct form, but it will not really alter the case.”Lord Meadowbank .— “I think so too; at the same time, unless the Leith Bank desire it, I would allow the interlocutor to stand, preferring the trustees, subject to the qualification proposed by Lord Glenlee.”

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Jacob Yeats appealed.Appellant .—1. The first point of inquiry is, what would be the rights of parties under the terms of the deeds, leaving out of view any special direction regarding the deposited money.It is clear that the will of 17th April 1829, bequeathing to the appellant the “goods and chattels, wherever situated,” and appointing him sole “executor and residuary legatee,” followed by confirmation, is sufficient to vest in the appellant all the testator's funds, whether in England or Scotland. On the other hand, it is equally clear that by disponing to trustees the island of Shuna, burdened with a heritable lien for payment of a certain sum, the testator gave to these trustees the lands with every incumbrance of a real nature attaching to them, as vested in his own person; and that the parties acquiring the lands so burdened would, under the general rule, have no relief against any other party with, reference to that burden. At all events, the appellant, as executor, could never be called on to pay out of the moveable funds a debt which was not moveable, but which had been made heritable by the testator himself. 1

Footnote

Anderson for Leith Bank .—“We are satisfied with the proposed qualification, and do not require the decree of preference to be in the name of the bank.”

Lord Justice Clerk .—“Then we adhere, subject to the qualification.”

Jameson, for the Executor , craved “that the Court should introduce into the interlocutor, “In respect of the arrestment by the Leith Bank adhere,” &c.; but the Court declined so to limit the grounds of decision, and adhered, subject to the qualification, that on the incumbrances being purged, and the obligations come under by Colonel Donald fulfilled, the balance should be paid over to the Leith Bank.”1 Stair, B. III., tit. 5. sect. 17; sect. 13; tit. 8. sect. 65. Erskinc, B. III., tit. 8. sect. 52; tit. 9. sect. 48. Robertson's Creditors, 13th Dec.

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2. The next inquiry is, whether any such special direction subsisted at the testators death, or formed part of the settlement of his succession, as to supersede the general rule.There are two ways in which it may be contended that the money deposited in bank was set aside for the relief of the trustees. It may be said that the testator by destination devoted the money for this purpose; or that the money was so appropriated, not merely by the will of the testator, but by some previous arrangement with third parties, creating a vested interest in this deposited money. But it is obvious that these two grounds are distinct and independent. The question of destination or testamentary disposal is different from an arrangement inter vivos, and indeed in one sense the two things are incompatible, since an appropriation inter vivos would have superseded any question of will, and the allegation of an expression of testamentary will, seems to imply that there had been no previous agreement for appropriation of a similar kind.On the point whether in the testamentary deeds by which the succession of Mr. Yeats is to be regulated, there is a destination of the deposited money in favour of the trustees, to the exclusion of the appellant as executor and residuary legatee, it is conceived little difficulty can be entertained.It is obvious that the will of 15th April 1828 was superseded by subsequent deeds, so that it has not now any influence on the question. It was inept by the law of Scotland to carry heritable property, and a new deed

Footnote

1803. Morrison, Competition, Appendix, No. 2. Clayton v. Lowthian , 3d March 1826. 2 Wilson and Shaw's Appeal Cases, p. 40.

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Again, the will of 1st May 1828 was actually cancelled by the testator, and marked as being so by his own initials; and therefore it is only necessary to consider the effect of the trust disposition of 1st April 1829, which it is admitted is in part at least an effectual deed for regulating the succession.On attending to the terms in which the subject of the deposited money is introduced, it is impossible to say that there is a substantive or direct bequest of it in any particular way. The disposal of that money was not intended to be regulated by that deed, and it is mentioned merely by relation to another will, the terms of which, if it can be found, and if it still subsists, can alone be considered as containing the testator's positive and ultimate declaration of his intention upon the subject. The testator says,— “I have in a separate will, which respects my property in England, directed my trustees or executors in that will to assign or indorse the notes or receipts of the Royal Bank to my said trustees, the Lord Mayor and Bailies.”He here refers to the will of 1st May 1828. But subsequent to the execution of the trust disposition, the testator, on the 17th of April 1829, executed another will cancelling the will of 1st May 1828, and containing the ultimate declaration of his intentions as to his English property, and as to his personal funds generally. It is impossible, therefore, in this state of the case, that the allusions made in the trust disposition to the will then subsisting can be founded on as declaratory of the

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But the will of 17 th April 1829 is in favour of the appellant's pleas. It gives him the whole goods and chattels of the testator wherever situated. It appoints him sole executor and residuary legatee. It subjects him in payment of certain bequests, but it contains no legacy or provision of any kind as to the deposited money. It does not, as pointed at in the trust disposition of the 1st April preceding, direct the appellant, as executor, to assign or indorse the notes or receipts of the bank to the trustees, nor does it qualify the general bequest in the appellant's favour by any condition or exception on the subject.3. The next inquiry to be made, is, whether there was any previous arrangement inter vivos as to the appropriation of this money, so as to create a vested interest in third parties, of which the Shuna trustees might be entitled to avail themselves.In considering how there could be any specific appropriation of this subject it is obvious that it could only arise in consequence of an express agreement with the creditors holding the bond and real lien over Shuna. There could be no agreement with the Shuna trustees, because their interest in the succession was altogether mortis causâ, and there were no other parties, except the Leith Bank, with whom any agreement of appropriation could be made.Now, the whole evidence and history of the case show unequivocally, that there never was, as between the testator and the Leith Bank, a valid or concluded agreement for appropriating this fund to the payment of the debts over Shuna.

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It may be true that Mr. Yeats at first deposited the money in bank in the hope that it would either bring about a settlement of the transaction, and lead to an immediate clearing of the incumbrances on the Shuna titles, or would stop the currency of legal interest upon the debt. But the Leith Bank, the creditors in the bond, never closed with this proposition, nor recognized the deposit as affecting them or made for their behoof. Indeed, during Mr. Yeats's life, they never alluded or referred to the deposit. In the discharge of the 4,000 l . which was paid out of the deposit not the least allusion is made to that fact. Then, after Mr. Yeats's death they did not commence any process to have this special fund declared to belong to them, or even to have the executor ordered to asssign it to them. They brought an ordinary action against the executor, concluding generally for payment of the debt due by Mr. Yeats's bond, to be recovered out of all or any of the effects of the deceased, and upon this action they used an arrestment, attaching all sums whatever in the hands of the Bank of Scotland belonging to the appellant as executor, in the very same way as any ordinary or general creditor of the executor's would have done. Further, they did not limit their claim merely to such interest as arose and had accumulated in the hands of the Bank of Scotland, but they claimed the full legal interest upon the amount of their debt from the time when it became due to them till paid, with a fifth more as the penalties of failure.Besides, the money was plainly at the risk of Mr. Y eats. If the bank had failed he alone must have suffered. The Leith Bank had in no way sanctioned

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Further, the claim of the Leith Bank was in no ways restricted to the fund deposited, either as respects the principal, or the interest which it was yielding. They were not precluded from claiming their money, either out of the lands of Shuna themselves, or from the general estate of their debtor.Supposing also that Mr. Yeats had become insolvent in his lifetime, or had died in that state, the Leith Bank had obviously no such vested interest in the money deposited in bank as would have enabled them to compete preferably with his general creditors, or with any individual creditor using diligence by arrestment or otherwise; and under a sequestration or other process of distribution in bankruptcy, this fund would have been divided as a part of his ordinary moveable estate; or, supposing that claims had arisen on the part of the Bank of Scotland against Mr. Yeats, they would have been entitled to retain the money deposited with him after the receipts were taken in his own name in payment or security of their claims, and any pretence of appropriation in favour of the Leith Bank would have been disregarded.All these circumstances are inconsistent with the idea, that there was a completed arrangement as to the appropriation of this money, in which any person whatever had a right or vested interest.This case is entirely different from that of Lord Minto against Sir William Elliot, decided in the House of Lords, 29th June 1825, relied on by the respondents. 1

Footnote

1 Wilson and Shaw's Appeal Cases, p. 678.

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In the first place, in so far as regards the question of testamentary intention, the testator's operations regarding the money were, in Lord Minto's case, subsequent to the will and other mortis causa deeds; while in the present instance the will on which the appellant founds is subsequent to the acts on the testator's part from which a contrary destination is attempted to be inferred. And as to the alleged agreement of appropriation inter vivos, there was, in Lord Minto's case, a contract entered into, and an equitable right conferred on a third party, which cannot be pretended here. Even in such circumstances, Lord Gifford considered the case as attended with the utmost difficulty.Respondent. —1. On the first point, raised by the appellant, that of intent, the whole of the testator's conduct, connected with the disputed fund, most clearly shows that it never at any moment of time was his purpose to bestow it upon the appellant, but that it was his settled determination throughout, that it should be employed in the disincumbrance of his property of Shuna.Mr. Yeats made his purchase of Shuna in January 1815. The price was to be 10,500 l ; but the property being heavily burdened with debt, and the seller, in consequence, not in a situation to give a sufficient title, it was arranged that only 5,000 l . should be instantly paid, and the remainder not until Candlemas 1819; Mr. M'Donald being bound, in the meanwhile, to clear the property from all incumbrances affecting the same;

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This postponement was necessary solely from the inability of the seller to give an unfettered title, and it was never doubted that before Candlemas 1819, the eventual term that was fixed for payment, all would be clear. Mr. Yeats was from the first ready to pay the price, and if the price had been paid, the estate would have descended at its utmost value to his heir. He could not mean this state of things to be infringed upon, merely because the seller was not ready to receive the price. On the contrary, he granted a personal bond, binding his executor, and not his heir, to pay; and so little is the monies remaining on the footing of a real burden an object with Mr. Yeats, that it was deemed necessary expressly to declare, in the personal bond, “that these presents shall not hurt or prejudge the real security;” obviously implying that the personal bond was truly the predominant obligation in the sight of both parties.Matters thus remained until 2d February 1819, when the second moiety of the price had been stipulated to be paid. Mr. Yeats was ready with funds to discharge the debt, and he was, through his agent, in communication with the bank to this effect. He actually tendered payment. A draft of the requisite deed of discharge was even prepared, transmitted for revisal, and returned revised. It was no act of Mr. Yeats's, that payment was not made; the hindrance arose now, as it had arisen from the first, on the seller's side; he and those in his right had not yet succeeded in fulfilling their obligation “to clear the property from all incumbrances affecting the same.” Mr. Yeats, accordingly, had no

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It was so deposited in the name of Mr. Samuel Rose, as in some sort a trustee for all concerned. The sum consigned was not a slump or random sum which left any thing for after discussion and adjustment among the parties; it was the precise and exact amount of the debt due, with interest down to the very term day stipulated in Mr. Yeats's bond. There is no dispute, that had this sum being actually paid, instead of being merely consigned, it would have completely and for ever extinguished the debt out of which the present litigation has arisen.The Leith Bank applied for, and instantly obtained, a sum of 4,000 l . out of the deposited fund, as the amount of incumbrances extinguished; while the remaining 1,649 l . 2 s . 5 d. was “allowed to remain deposited in the bank,” as a sum sufficient to meet those incumbrances which were yet unextinguished.It is true, that the deposit which had been originally made in Mr. Rose's name was transferred into Mr. Yeats's own name. But Mr. Yeats, considering himself as divested of all substantial power over the money in its character of a deposited fund, a formal memorandum was drawn up and executed between him and Mr. Rose, explanatory of all that had taken place.It was more than a year and a half after this when Mr. Yeats executed the first of that series of testamentary deeds on the construction of which the present question has arisen; and all these deeds imply that it

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The question then comes to be, whether Mr. Yeats, having once unquestionably conferred upon the respondents a right to the deposited money, and having by the very fact of doing so, as well as in more direct terms, excluded the appellant, his residuary legatee, from all right to that fund, did ever afterwards change his mind as to the disposal of this portion of his property, so as (for that is the result of the appellant's argument) directly to invert the position of the parties in regard to it.Now, whatever may be said as to the deed of 1st May 1828, it is undoubted, that Mr. Yeats never either cancelled or revoked his first will of 15th April 1828.It is true that, in so far as that deed had relation to the disposal of the estate of Shuna, as a Scotch heritable estate, Mr. Yeats came to entertain doubts how far the deed of 15th April 1828 might be technically sufficient to carry heritage. In this view accordingly, and for the purpose of strengthening the grant which he had made, he prepared and executed a formal deed, in which he inserts a clause almost exactly similar to

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But it has been contended that the deed of 1st May 1828 is the will referred to in that of 1st April 1829 as the “separate will which respects my property in England,” that it was subsequently cancelled, and that, of course, any directions contained in it for the assignment or indorsation of the deposit receipts must have fallen to the ground along with it. This is an entirely mistaken view of the matter. For the will of 1st May 1828 is not the deed which contains the directions in question. These are contained in the deed of 15th April 1828,—the deed of 1st May merely containing the nomination of the executors upon whom the directions were to be binding. Now, the deed of 15th April was never revoked, and, of course, the directions contained in it stand at this moment in full force. Besides, in order to get at the meaning of the deed of 1st April 1829, it is nowise necessary to resort to any argument connected with the cancellation of the will of 1st May 1828, for as that will was not cancelled until after the date of the deed of 1829, it follows, that, even were it necessary to refer to the will of 1st May 1828, in order to get at the directions which the testator refers to in his deed of 1st April 1829, the will of 1st May 1828, which still existed at the date of that, deed, might competently be resorted to.The only other deed which he executed was the will of 17th April 1829; that day being exactly sixteen days posterior to the deed which the respondents have just been commenting upon; and it cannot be pretended that within this short interval Mr. Yeats had changed

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Besides, this deed contains no express words of revocation, applicable to the former deeds, or to any of them; and, therefore, in so far as it is not absolutely irreconcileable with and in open contradiction to these deeds, it must be construed in conformity. And not only does it not contain any words of express revocation, but it contains words of positive recognition. Thus it says, “it may be proper to observe that, by a will made by me in this present month and year, I have disposed of the island of Shuna in Argyllshire, Scotland.”The only clause which affords the appellant the slightest pretence for maintaining his present claim, is that which is contained in the deed of 17th April 1829:—
“As to my goods and chattels, wherever situated, I give and bequeath them to the said Jacob Yeats, his heirs and assigns, requesting, but not enforcing, his observance of some private instructions which accompany, but are not to be considered as any part of this, hereby appointing him, and his aforesaid, my sole executor and residuary legatee.”
But this clause is nowise stronger than the corresponding clause which devised the testator's “chattels and effects of whatever nature” in the deed of 1st May 1828. Yet that clause was not held by the testator to have been at all inconsistent with a grant of the deposited money in favour of the respondents, as it certainly was nowise intended by the testator to confer any right to that deposited money upon the appellant. On the contrary, it was contained in a deed which

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2. The next question is, whether Mr. Yeats's intention has been legally carried into effect.There is no difficulty of a technical kind, and this is not disputed. Therefore, as in a question with the appellant, who can of course take no more than the testator intended to give him, it is plain, that if the respondents have succeeded in proving the intention of the deceased to have been in their favour, there is at once an end to the dispute. There being here no question of succession ab intestato, and the parties taking hinc inde all that they are entitled to take, solely and exclusively under the testamentary deeds, which are admitted to carry to one or other of them the whole property belonging to the deceased, there cannot possibly be any inquiry except as to the testator's intention; for when it is fixed what he intended to give to the one, and what he intended to give to the other, the distribution must of course be made accordingly; or else this absurdity would arise, that a portion of the estate would be given contrary to the testator's intent.Indeed, they apprehend that there is a direct bequest of the fund to them for the purpose of the trust. But, independently of this, there is such a plain appropriation and destination of it for their benefit in the setting of it apart for the discharge and extinction of the unpaid balance of the price of Shuna, as completely to take it out of the residuary portion of the estate conferred upon the appellant, and to entitle the respondents to insist that it shall be applied to the special end for which the testator had thus destined it.

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Even had there been no testamentary deeds whatever, and had the question arisen between the heir and executor of Mr. Yeats ab intestato, the very peculiar destination which exists in the present case as to this deposited money would have entitled the heir-at-law to have insisted upon its being applied in extinction of the price of Shuna. 1It is true, that in the ordinary case where the price is converted into a real burden, at the instance, and for the ends of the purchaser, it might be said that the heir, and not the executor, must pay it. The purchaser, in such a case, is in the same situation as one who borrows money upon his estate. By so doing, he knows that the debt becomes the debt of his heir, and the law necessarily gives effect to this destination against the heir, just as in the other case it gives effect to the correspondent contrary destination against the executor.But here the postponed payment of the price was not rendered necessary for any end, or from any fault of Mr. Yeats. It was a thing that he could not avoid, inasmuch as it arose wholly from the incapacity of the seller to give an unincumbered title.This, so far from giving an heritable destination to the price, left it in Mr. Yeats's hands, with as much of a moveable or personal character attached to it as if both parties had been ready, hinc inde, to give and receive instant payment. 2

Footnote

1 Johnston, 25th February 1783. (Mor. 5,443.); Ersk. 2, 2, 14, citing Robertson, 19th January 1637. (Mor. 5,489.); Stair, 2, 1, 3. Arbuthnot, 23d June 1773. (Mor. 5,225.); M'Nicol, 16th June 1814. (Fac. Coll.); Dick, 4th July 1828. (S. D.) Clayton, 3d March 1826, 2 W. S. 44.2 Waugh, 17th Feb. 1676. (Mor, 5,453.)

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But it might even be conceded that, in the outset, the obligation to pay the price was of an heritable character. That it was originally by Mr. Yeats's fault, and not by that of the seller, that any arrangement for giving to it an heritable character became necessary.This, however, would only bring the operation of the respondent's argument down to the stipulated term of payment, at Candlemas 1819. For, whatever was the previous character of the liability, there can be no doubt whatever that Mr. Yeats was entitled to pay up and discharge the debt at the stipulated term of payment; and that, therefore, when this payment was tendered, and would not, or could not be received, the sum so appropriated became heritable destinatione, and no longer formed a part of the moveable estate descending to the executor.From the moment a tender of payment has been made, and much more from the moment that the fund has been actually placed in deposit, or consigned in bank, and set apart from the debtor's other estate, with a view to such payment and extinction, the fund becomes heritable destinatione. The executor, if the original debtor dies whilst the money remains in this situation, is not entitled to demand it as a portion of the executry; but, on the contrary, the heir who would have benefited by the payment, if the creditor's refusal or incapacity to receive payment had not rendered consignation unavoidable, is entitled to insist that he shall not be deprived of this benefit through the act of the creditor, but, on the contrary, that the deposited fund shall be applied to the purpose for which, from the moment of its deposit, it had been destined, viz., the

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A very satisfactory illustration of this principle is to be found in the recent case of E. Minto v. Elliot , where it was decided that the debtor in an heritable debt, having sold a part of his landed estate, and invested a portion of the price in the public funds, and intimated to the heritable creditor his intention of paying the debt in six months, but having died before the expiration of that period, and consequently before payment, his residuary legatee was not entitled to take the investment in the public funds as a part of the free succession, leaving the unpaid heritable debt a burden upon the heir, but was bound, out of the amount, to free and relieve both the landed estate and the heir of the heritable debt in question. 1Lord Brougham ,—My Lords, it is not my intention at present to state to your lordships the grounds upon which I may be disposed to advise you in dealing with this case, because I consider the points raised to be very material to the law of Scotland. The case is material enough to the parties, for there is some 6,000 l . in dispute; but it is so much more material to the law of Scotland and the practice of the Scotch Courts,—among other things, with respect to the admission and rejection of evidence, and therefore material as to the supposed conflict in the practice of the two countries, and especially as there is a legislative measure how in progress for amending the English law on this matter,

Footnote

1 E. Minto, 4th Feb. 1823. S. & D.; and affirmed on appeal, 29th June 1825; 1 W. & S. 679.

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On a future day, Lord Brougham read his opinion as follows:—

My Lords,the question which I considered it right to give reasons upon in this case, relates rather to the first than to the second part of the subject, as taken in the order of the argument at the bar: The manner in which the instruments executed in England by a domiciled Englishman are to be construed and dealt with in respect of evidence by a Scotch court, in so far as these instruments relate to the distribution of personal property situated within the territory of Scotland, rather than the question of valid or effectual appropriation. James Yeats, merchant in London, and residing always in England, had purchased the island of Shuna,

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“Now, if this transaction should not be closed before my death, I have, in a separate will which respects my property in England, directed my trustees or executors in that will to assign or indorse the notes or receipts of the Royal Bank to my said trustees, the Lord Mayor and Bailies, to be kept by them in the same depository where they now are till the above defects are cured, and till the entry stipulated to be made with the superior is implemented; or if the latter is called for before the titles are purged, it may, with no impropriety, be taken from the sum in deposit.”
These words, “or if the latter,” &c. do not, in form, relate to the will previously made; but, what is of more importance, they contain a direction, or the declaration of an intention nowhere to be found in the will. They are, therefore, an addition to the declaration there contained. But let us consider the last will which was admitted to probate. It is dated 17th April 1829, less than three weeks after the trust disposition, and it clearly refers to the English property only,—he considered that in the trust deed he had disposed fully of his Scotch property,—and the will is addressed to the English. This circumstance, and the express reference to the provision of the deed in the will, appear to me sufficient to render them both parts

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The House of Lords ordered and adjudged, That the said petition and appeal be, and is hereby dismissed this House, and that the interlocutors, so far as therein complained of, be, and the same are hereby affirmed.Solicitors: A. H. M'Dougal— Richardson and Connell— Geo. Webster, Solicitors.