Scottish Court of Session Decisions

The Most Reverend James Augustine Smith, Roman Catholic Archbishop of St Andrews and Edinburgh, residing at 42 Greenhill Gardens, Edinburgh, and others, being the members of the Finance Committee of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh, and, as such, trustees for behoof of the said church in the said Archdiocese, raised an action against James Henry Edward Anscombe, otherwise known as Edward Oliver, executor-dative of the deceased Mrs Julia Catherine Squance or Oliver, as such executor and as an individual.

The pursuers sought to have it found and declared that the sum of £7000, or such other sum as the Court might fix, was a true, just, and lawful debt resting-owing by the deceased Mrs Oliver to the pursuers, and that they were entitled to payment thereof out of her estate, and to have the defender ordained to make payment thereof.

The pursuers' averments appear sufficiently from the opinion of the Lord Ordinary (Cullen), and are summarised in the opinion of the Lord President.

The pursuers pleaded—“(1) The said deceased Mrs Oliver having undertaken to make payment to the pursuers of the sum of £7000 upon condition that the pursuers erected a church in accordance with her desires, and the pursuers having erected

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the church accordingly, and paid the cost thereof, and Mrs Oliver having failed to implement her said obligation, the said sum of £7000 is a debt due and restingowing to the pursuers out of the estate and effects of the said Mrs Oliver, and the pursuers are entitled to decree of declarator as craved. (2) The pursuers having, as Mrs Oliver's mandatories, entered into the contracts and caused the church to be built as aforesaid, the defender, as executor or otherwise so far as lucratus by the succession, is liable to pay the amount sued for. (3) Mrs Oliver having agreed and bound herself to provide by will the cost of the said church to the extent of £7000, the pursuers are entitled to decree as concluded for. (4) The defender, as representing the said deceased Mrs Oliver, and intromitting with her estate and effects to the extent condescended on, being liable for the obligation incurred by her as aforesaid to at least the value of £7000, the pursuers are entitled to decree as craved, with expenses.”

The defender pleaded, inter alia—“(1) The pursuers have no title to sue. (3) The pursuers' averments, so far as material, being unfounded in fact, the defender is entitled to absolvitor. (4) The alleged undertakings by the late Mrs Oliver having been enforceable, if ever, more than five years ago, and being in their own nature innominate contracts or nuda pacta, cannot be proved except by her writ or oath.”

On 5th July 1910 the Lord Ordinary ( Cullen) pronounced this interlocutor—“… Repels the first and second pleas-in-law for the defender: Sustains the fourth plea-in-law for the defender, to the effect that the alleged obligations by Mrs Oliver can be proved only by her writ; and in connection therewith allows the pursuers a proof in habili modo, and to the defender a conjunct probation: Quoad ultra allows the parties a proof of their averments, and to the pursuers a conjunct probation….”

Opinion.—“The pursuers of this action are described in the summons as the whole present members of the Finance Committee of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh, and, as such, trustees for behoof of said church in said Archdiocese, and the said Finance Committee as such, and as trustees foresaid. The defender is the executor-dative of the deceased Mrs Julia Catherine Squance or Oliver, who resided in Midlothian, as such executor and as an individual.

The subject-matter of the action is connected with the erection of a Roman Catholic church at Slateford, which was begun in 1890 and finished apparently in 1896. The priest in charge of the mission there was Father Forsyth. Mrs Oliver was a member of the congregation, and she made various contributions towards the cost of erection of the church. Over and above these contributions made during her life, the pursuers in the present action claim the sum of £7000 as payable to them out of the estate left by her at her death. She died on the 11th June 1908. The summons concludes for (1) declarator that the said sum of £7000, with interest from 11th June 1908, is a true, just, and lawful debt resting-owing by her to the pursuers, and that the pursuers are just and lawful creditors for the same, and are entitled to payment thereof out of her means and estate; and (2) decree for payment of said sum of £7000 and interest against the defender.

The general nature of the case presented by the pursuers is that Mrs Oliver took a great interest in the erection of the church, that from time to time she intimated desires as to the manner in which it should be constructed and equipped in various particulars, and that she obliged herself to the pursuers to provide various sums amounting to £7000 towards the cost of it. No written obligation by Mrs Oliver for any part of the £7000 is condescended on. Mrs Oliver's alleged undertakings to provide the £7000 are said to have been communicated by her orally to Father Forsyth at various interviews she had with him between the years 1890 and 1896.

The pursuers' statements on record as to the undertakings or promises made by Mrs Oliver, while they represent her as having assured the pursuers of her pecuniary support, to put the matter generally, exhibit considerable variation in expression. This is perhaps not unnatural, looking to the circumstances of the case. Mrs Oliver was a well-off member of the church to whose wishes Father Forsyth would be inclined to defer on receiving her assurances of pecuniary help, without taking the risk of estranging her interest and goodwill by insisting on getting from her more solemn or precise expressions of obligation than those which she colloquially resorted to. Mrs Oliver's affairs were in this position that her income was largely derived from trust funds of which the capital was not at her command during her lifetime, so that it was unsuitable that she should either make present payment of large sums of money, or undertake to pay them during her lifetime. The variation in the expression of the undertakings or promises ascribed to her on record, however, introduces a considerable difficulty into the pursuers' case.

In article 8 the pursuers state that in December 1893 Mrs Oliver promised to give to Father Forsyth the annual sum of £150 upon a certain condition, ‘and to make provision by will or otherwise that at her death the capital sum represented by this annual payment would be paid to the church.’ The promise as to the annual payment of £150 was incorporated in writing and was duly fulfilled. The other part of the alleged promise was apparently matter of oral statement.

Condescendence 9 sets forth that thereafter Mrs Oliver at an interview with Father Forsyth ‘promised and undertook’ that if certain plans were adopted and carried out ‘she would be responsible for’ £3750 of the cost. This alleged promise and undertaking apparently superseded the promise of a capital sum referred to in condescendence 8.

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Condescendence 11 refers to certain alterations on the plans of the church desired by Mrs Oliver, and says that at an interview with Father Forsyth in 1894 she explained to him that the sum ‘which she had undertaken to leave to the church at her death’ was greater than that for which he had given her credit, and should be, not £3750 but £4500, ‘which was the sum she intended to leave to the church at her death, and she promised and undertook to contribute and pay this sum towards the cost and expense of the buildings if her views as to the plans were adopted.’

Condescendence 12 sets forth that Mrs Oliver ‘undertook to increase the sum to be set aside at her death’ by £1000, making the total amount £5500 ‘to be paid by her’ if her wishes were given effect to.

Condescendence 15 sets forth that in the autumn of 1895, when the matter of the flooring of the church came up for consideration, Mrs Oliver desired that Minton tiles should be used, and that at a meeting with Father Forsyth in or about October 1895 she ‘undertook to add £500 to the amount which she had undertaken to provide for the church, thus bringing out the total sum at £6000.’

In condescendence 16 it is stated that Mrs Oliver thereafter insisted on the tiles being encaustic, and in writing expressed her willingness to supply the increased cost. The increased cost was £99, 10s. 3d. This sum is not sued for.

Condescendence 20 sets forth that Mrs Oliver pressed for having a particular kind of heating apparatus installed in the church, saying that she would otherwise be debarred from entering it, and that ‘she undertook that if the installation were made she would provide an additional £1000’ to meet the cost of it and of certain other alterations, ‘thus bringing the total amount which she had undertaken to provide up to £7000.’

Condescendence 21 sets forth that Mrs Oliver on several occasions, and particularly during March 1897, endeavoured to obtain money from an English trust estate in which she had an interest, for the purpose of implementing her obligation to the pursuers during her lifetime, but that she did not succeed in doing so. In condescendence 22 it is stated that she informed the pursuers of this, ‘and from time to time from 1893 onwards she stated that, failing her getting such cash in her lifetime—the difficulty being in large measure due to the settlements under which she received her income—she would by her will provide that the necessary funds should be provided at her death,’ and that the ‘pursuers implicitly relied on and acted on these statements.’

The pursuers then go on to state that in 1896 Mrs Oliver instructed her agent to prepare a codicil ‘bequeathing a sum of £6000 to the pursuers;’ that a draft codicil ‘giving effect to Mrs Oliver's wish’ was accordingly prepared and sent to her, and was by her submitted to Archbishop Macdonald; that about a year afterwards, in September 1897 (the codicil mentioned not having been signed) Mrs Oliver wrote to her agent that she thought it would be well not to delay any further the adjustment of the codicil, and thereafter stated to him that she considered herself bound for payment of not less than £6000 to meet the extra cost of the buildings incurred in deference to her wishes; that a second draft codicil was thereafter prepared bequeathing a sum of £6000 to the pursuers, together with an additional sum of £1000 to meet the payment of the wages of a sacristan; that this new draft codicil was sent to her, and that several minor alterations were made upon it giving effect to suggestions from Archbishop Macdonald and Mrs Oliver; that a further draft prepared on her instructions was sent to her, and was returned by her for extension, and was extended; that the extended document was sent to her for signature, but that she never signed it. The pursuers say that they were unaware until her death that she had never signed it.

In condescendence 24 the pursuers proceed to characterise their present claim as one arising ex mandato. They say—‘Mrs Oliver having undertaken to provide a sum of £7000 on condition that a church was erected in accordance with her desires, all as aforesaid, and having regularly paid the sum of £150 per annum in name of interest upon a loan for the building of the church, the pursuers on their part, in reliance upon Mrs Oliver's said obligation, and as her mandatories and acting on her instructions, caused the church to be erected in accordance with her desires at a cost greatly exceeding that which they would otherwise have incurred.… In agreeing to the erection of the church in question at the said cost, and in making contracts for the work, the pursuers relied on the promises and undertakings and obligagations by Mrs Oliver, and gave the necessary instructions and entered into the necessary contracts as her mandatories on the footing and in the belief that if the church was built as she desired (as was done) she would provide money to the extent of £7000 to defray the cost thereof, and Mrs Oliver instructed and authorised the pursuers to enter into said contracts and to undertake liability thereunder on the promise, undertaking, and obligation, that she would provide said £7000 either during her lifetime or by provisions in her testamentary writings.’

The defender's first plea-in-law is that the pursuers have no title to sue. In support of it they contend that any obligations alleged to have been undertaken by Mrs Oliver were undertaken to Father Forsyth and not to the pursuers. I am not prepared to sustain this plea. It is averred (Cond. 3) that Father Forsyth throughout acted for and represented the pursuers, and also (Cond. 4) that in the whole communings between her and Father Forsyth Mrs Oliver knew that he was acting for and representing the pursuers. On these averments it appears to me that the pursuers have set out a sufficient title to sue for implement of any obligations which Mrs Oliver may have

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given to Father Forsyth as the agent, and known by her to be the agent, of the pursuers. in connection with their undertaking of building the church on their land.

The defender's second plea is that the pursuers' averments are irrelevant. In support of it he argues (1) that the pursuers' averments do not clearly show what was the precise nature of the obligations, if any, undertaken by Mrs Oliver, whether to pay the money during her life or to charge it on her succession at her death; and (2) that according to the averments any obligations originally undertaken by Mrs Oliver were, when she found herself unable to raise money to meet them during her life, cancelled with the pursuers' consent, and superseded by a mere expression of intention on her part, short of an obligation, to make them beneficiaries under her will to the extent of £7000, with which mere expression of intention the pursuers agreed to rest content.

The defender concedes that obligations of the kind which the pursuers seek to ascribe to Mrs Oliver do not require writing for their constitution. The mode of proving such obligations is another matter, to which I shall advert in a moment. While I sympathise with the defender's view that the pursuers' averments as to the undertaking of the alleged obligations fall to be examined carefully, I think that the defender's characterisation of them as above stated does not quite do them justice. On fully considering them I think, although with difficulty, that fairly read they amount to this, that Mrs Oliver undertook obligation to the pursuers that she would by will provide payment to them of the sums sued for out of her suc cession at her death, This is an obligation of an unusual kind. A will is an inherently revocable instrument. To speak of an irrevocable obligation to make a will is not a happy use of words. An obligation by a husband in an antenuptial marriage-contract to provide by will his whole estate to the children of the marriage is a settlement on them of the free estate at his death, entitling them to claim it whether a will be actually made or not. And so a proved obligation to provide some person by will with a named sum of money will, I take it, constitute a claim in the obligee for that amount against the free succession of the granter, preferably to his heirs ex lege or testamentary legatees. In such cases the fact that a will is contemplated ex figura verborum may give rise to the question whether on a due construction of the language used by the alleged obligant it imports an actual obligation, or a mere expression of intention. In the present case it appears to me that the pursuers' averments sufficiently set forth an obligation undertaken by Mrs Oliver. Following the views above indicated the pursuers may not be entitled to a declarator in the terms sought by them. But they will be entitled to insist in the conclusion for payment if they prove their case.

The next question is as to the mode of proof of the alleged obligation. The pursuers contend that it may be proved by parole evidence. As already stated, they (cond. 24) seek to characterise the relation between Mrs Oliver and them arising out of the course of actings alleged as having been that of principal and agent; and in accordance with this view they maintained at the hearing that the facts alleged infer that Mrs Oliver, as principal, could have insisted on the alterations which she desired in the construction of the church, and to defray which she promised the sums sued for, being carried out by the pursuers; and that she incurred liability to the tradesmen whom the pursuers as her agents employed to do the work. I do not think that the facts averred disclose such a relation of principal and agent. Nor do I think better founded the alternative view maintained at the hearing that these facts infer the existence of a contract of joint-adventure between the pursuers and Mrs Oliver.

The averments do not appear to me to disclose a mutual contract of any kind. The obligations ascribed to Mrs Oliver were unilateral. There were no counter stipulations prestable against the pursuers. The alleged obligations were of the nature of conditional promises gratuitously undertaken by Mrs Oliver. I am of opinion that they can be proved only by her writ. The pursuers say that they have duly fulfilled the conditions attached to the promises, and they argue that, esto while matters were entire the promises were proveable only by writ, the fulfilment by them of the conditions operates, rei interventu, to set them free from this restriction and opens the door to parole evidence. No authority was cited in support of this view. I cannot see how the pursuers, by first proving certain facts as to the mode in which they built their church, and by asserting that these facts amount to a fulfilment of conditions upon which an unproved promise was given by Mrs Oliver, can release themselves from the rule of law which requires that the promise itself be proved by writ or oath.”

The pursuers reclaimed. The defenders at the hearing intimated that they did not propose to argue quinquennial prescription referred to in plea 4.

Argued for the pursuers and reclaimers—This was not a case of a nudum pactum or mere promise to pay money or leave it by will. Mrs Oliver had, owing to her representations that she would pay the increased cost, instructed and induced the pursuers to make specific changes in the design and construction of the church. She was interested in the promotion of a common object, namely, the building of the church, and had an interest in what was to be the sort of church in which she was going to worship, and accordingly the obligation undertaken by her was not gratuitous — Walker v. Milne and Others, June 10, 1823, 2 Sh. 379; Dobie v. Lauder's Trustees, June 24, 1873, 11 Macph. 749, 10 S.L.R. 524; Thomson v. Fraser, October 30, 1868, 7 Macph. 39, per the Lord Justice-Clerk, at p. 41, 6 S.L.R. 81;

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Hawick Heritable Investment Bank, Limited v. Huggan, October 31, 1902, 5 F. 75, per Lord Kyllachy at p. 78, 40 S.L.R. 33; Paterson v. Paterson, February 3, 1893, 20 R. 484, 30 S.L.R. 646, which was referred to with approval in Mackenzie's Trustees v. Kilmarnock's Trustees, 1909 S.C. 472, 46 S.L.R. 217; Bell's Principles, sec. 8. The contract was of the nature of mandate, and even if it were not mandate but an innominate contract, it was not of an unusual nature, and accordingly the proof should not be confined to writ or oath— Downie v. Black, December 5, 1885, 13 R. 271, 23 S.L.R. 188, per Lord Shand, quoting Lord Deas in Forbes v. Caird, July 20, 1877, 4 R. 1141, 14 S.L.R. 672.

Argued for the defender and respondent—The pursuers' case resolved itself into either a promise to pay money or a promise to make a will. Such a promise could only be proved by writ — Johnston v. Goodlet, July 16, 1868, 6 Macph. 1067, at 1072; Millar v. Tremamondo, January 29, 1771, M. 12,395; Stair, i, 10, 4. As to the Melville Monument case— Walker v. Milne and Others, cit. sup.—they referred to Allan v. Gilchrist, March 10, 1875, 2 R. 587, at 590, 12 S.L.R. 381.

At advising—