Scottish Court of Session Decisions

Observations by the Court on the rule applicable to the question of expenses in special cases.

This was a special case between the trustees and four sisters of the deceased John Wright, Esq., sometime merchant in Naples, thereafter residing at Largs Castle, Largs. The facts were as follows:—The said John Wright died on 26th December 1866, leaving heritable property of the value of £5450 or thereby, and moveable property of the value of £19,000 or thereby. He left a trust-disposition and settlement and codicil. The said John Wright was survived by four sisters, viz., the said Margaret Wright, Mary Wright, Mrs Agnes Wright or Howie, and Ann Wright. The said John Wright was, at the date of the said trust-disposition and settlement, and thereafter until his death, possessed of heritable property at Seamill or Kinningbrae, part of the lands of Kirktonhall in Ayrshire, which heritable property consisted of a piece of ground, extending to an acre and three-quarters or thereby, and having two cottages thereon, each cottage having attached thereto a portion of the said piece of ground extending (including the space occupied by the cottage) to fully three-quarters of an acre or thereby. The said heritable property was held on two leases granted to authors of the said John Wright—the ground on which one of the cottages was built being, with the relative portion of ground attached to the cottage in one of the leases, and the ground on which the other cottage was built being, with the relative portion of ground attached thereto, in the other lease. One of the said leases is dated 27th July 1807, and was for 354 years from 12th May 1807, and the other is dated 25th April 1808, and was for 361 years from Martinmas 1805. The said John Wright, on May 29, 1847, acquired right to the whole of the property foresaid (as held under the said leases respectively) by a deed of translation or assignation. The subjects contained in the said lease of 1807 are contiguous to those contained in the said lease of 1808, and the lessor in the lease of 1807 was the same as the lessor in the lease of 1808, viz., Francis Caldwell Ritchie, Esquire, of whose lands of Kirtonhall, the subjects contained in both of said leases formed part as aforesaid. The said Mary Wright and Agnes Wright or Howie were, at the date of the said trust-disposition and settlement, as they had for some years previously been, and as they continued until the death of the said John Wright to be, in the personal occupation and possession of the cottages and relative ground contained in the said leases. They so occupied and possessed rent free. The truster had, some years before his death, taken away from said cottages any household furniture, silver plate, plenishing and effects which belonged to him. The whole of the Baid John Wright's said heritable property at Seamill or Kinningbrae is claimed by the said Mary Wright and Agnes Wright or Howie, on the ground that it falls under the direction in the fourth purpose of the said trust-disposition and settlement. The trustees admit that this claim is well founded, so far as regards that portion of the said heritable property which is contained in the lease of 27th July 1807; but they maintain that it is not well founded so far as regards the remaining portion of the said heritable property, viz., the portion which is contained in the lease of 25th April 1808.

The above-mentioned purpose is as follows:—“Fourthly, To hold for behoof of, and if and when required, to assign, dispone, convey, and deliver to my sisters Mary Wright and Agnes Wright or Howie, and their heirs and assignees, my heritable property at Seamill or Kinningbrae, part of the lands of Kirktonhall in Ayrshire, and tack thereof between Francis Caldwell Ritchie of Kirktonhall and John Boyd, weaver of Kinningbrae, near Kilbride, dated the twenty-seventh day of July Eighteen hundred and seven, as described in the translation or assignation thereof, granted by James Howie, sometime merchant in Glasgow, in my favour, with my whole household furniture, silver plate, plenishing, and effects therein and thereupon.”

Mr Wright returned from Naples to Scotland in 1849, and went to live with his said sister Margaret at Glasgow, she having a house there. They lived together at Glasgow til] 1852, when Mr Wright, who had purchased Largs Castle at Largs, went there along with his sisters Margaret and Ann, and they kept house for him there until his death in 1866. Mr Wright was in bad health for some years before his death, and required constant and

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careful attendance, which was given to him by his sister Margaret. He was grateful to her for this, and he informed her that, besides the provisions made for her by his will, he intended to make her a present. On the 2d day of November 1864 he deposited, with the branch of the City of Glasgow Bank at Largs, the sum of £500, and took the deposit-receipt therefor in name of and payable to the said Margaret Wright. He informed her of his having done so. The deposit-receipt was sent to her by the banker, and she kept it in her own custody, and under her own control, until she gave it back to her brother as hereinafter stated. Mr Wright's trust-disposition and settlement was executed in 1861, and he informed Mr MacKirdy, one of the trustees, that he had appointed him to be one of his trustees. Thereafter, in the months of November or December 1864, Mr Wright stated to Mr MacKirdy that he had made a present of £500 to his sister Margaret, in recompense for the attention she had shown to him during his long and severe illness. Mr MacKirdy expressed to him his satisfaction at hearing of this, and said to him it was an act of considerate kindness, and that it was only what was right and proper for him to do. Sometime afterwards, Mr Wright, at an interview between him and Mr MacKirdy, repeated to Mr MacKirdy the statement that he had made to his sister Margaret a present of £500. Mr Wright never made to his sister Margaret the present of any other sum of £500 than the sum contained in the said deposit-receipt. On Mr Wright's death, money was wanted to pay certain accounts, and as there was no money in the house at the time, the said Margaret Wright offered to lend such portion of the said sum of £500 as might be necessary. On application to the bank, it was then discovered that the money in the deposit-receipt had been withdrawn on 2d August 1865. This was done by Mr Wright. The deposit-receipt had been indorsed by the said Margaret Wright, but she had no recollection of having done so, and she has still no recollection of having done so. All that she recollects is, that her brother one day asked for the receipt, and she gave it to him. He did not state for what purpose he wanted it, and she, at the time, thought he meant to keep it for her. She frequently signed papers which her brother presented to her for her signature, and she did so without inquiring into the nature of the papers, or the reason of her signature being required, she having the fullest confidence in her brother's integrity. By delivering the deposit-receipt to her brother, she did not intend to return to him the present he had made her, and he never then or afterwards said to her that he meant to take back the present. The interest that had accrued on the money in August 1865, amounted to £13, 4s. 10d.; and this sum of interest, and the principal sum of £500, were included in a draft made payable to Mr Wright in Glasgow on 2d August 1865, which money he received. For sometime previous to his death, and as far back as August 1865, Mr Wright's memory was much impaired. Mr MacKirdy had much personal and confidential intercourse with him, and his belief is that Mr Wright only intended, by uplifting the money, to take a temporary loan of it to meet some immediate necessity; but that he intended afterwards to replace it, and forgot to do so. The other trustees do not know anything in regard to the matter, but the above is the firm belief of Mr MacKirdy, to whom Mr Wright several times spoke in reference to the present of £500 he had made to his sister Margaret. The said Margaret Wright now claims payment from Mr Wright's trustees of the sum of £500, with interest at the rate of 5 per cent, from 2d November 1864, which claim the trustees refuse.

The questions for the opinion and judgment of the Court are:—“(1) Whether the said Mary Wright and Agnes Wright or Howie are entitled to the whole of the said John Wright's foresaid heritable property at Seamill or Kinningbrae, or only to the portion thereof held under the said lease dated 27th July 1807? (2) Whether the said Margaret Wright's claim against the said John Wright's trustees for the sum of £500 is well founded? And if so, is she entitled to interest on that sum from 2d November 1864, or from any other date, and at what rate?“

Fraser for Wright's Trustees.

Black for other parties.

At advising—