James Charles Macrae, - Appellant; Maria Hyndman or Macrae, - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 27 June 1839 |
| Date | 27 June 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 677
FROM THE COURT OF SESSION.
Mews' Dig. iv. 1135; S.C. sub nom. Macrae v. Macrae, Macl. and R. 645; 7 Scots R.R. 259.
[212] APPEAL from the court of session. JAMES CHARLES MACRAE,-Appellant; MARIA HYNDMAN or MACRAE - Respondent [March 19, 20, 1838; June 27, 1839]. [Mews' Dig. iv. 1135; S.C. sub nom. Macrae v. Macrae, Macl. and R. 645; 7 Scots R.R. 259.] A sentence of outlawry, upon flight from a charge of felony, does not incapacitate the outlaw from directing, according to the terms of a, previously executed trust deed, the trustees in what mode they shall carry the trust into effect. The pursuer in the Court below, the Appellant in this House, instituted a, suit in the Court of Session for the purpose of reducing certain deeds made by his father under the following circumstances. The pursuer and defender were the only lawful son and daughter born of the marriage betwixt James Macrae, esq. for some time proprietor of the estate of Hoi-mains, etc., and the deceased Maria Cecilia Le Maistre Macrae. The pursuer was born in London, on the 2d of January 1791. The pursuer's father, on 13th April 1790, fought a, duel in the neighbourhood of the city of Edinburgh, with Sir George Ramsay, of Banff, baronet, then, residing in St. Andrew Square, Edinburgh; who was1 shot by Mr. Macrae, and died in consequence on the 16th day of that month. [213] Mr. Macrae was immediately afterwards pursued for the offence and crime of murder, on criminal letters at the instance of the widow and brother of the deceased, with the concurrence of the then Lord Advocate. Mr. Macrae was edictally cited on the 26th May 1790, upon, the authority of these criminal letters, to appear before the Judges of the High Court of Justiciary, a,nd there stand his trial for the said crime of murder, upon the 26th July 1790; but before that day arrived, Mr. Macrae absconded, and fled from Great Britain to France. Sentence of outlawry was then pronounced against him. This sentence of outlawry and fugitation was, on the 27th July 1790, the day after it was pronounced, followed up by letters of denunciation at the instance of both the public and private prosecutors, and these letters of denunciation were duly 677 VI CLARK & FINNELLT. MACRAE V. HYNDMAN [1838, 1839] and lawfully executed against Mr. Macrae, on the 28th July 1790, and recorded the next day. In the meantime, Mr. Macrae, upon the 8th May 1790, at the Hotel de la Bauphine, in the city of Paris, executed am absolute conveyance of his estate of Holmains, purporting to be made for good and lawful considerations, to and in favour of the Eight honourable James Earl of Glencairn, and Alexander Young, clerk to the signet, and the survivor of them, and their heirs and assignees, heritably and irredeemably, for the use and behoof of Mr. Macrae, the truster, and his heirs. This disposition was recorded 14th November 1792. Mr. Young, as the survivor of the sa,id two- disponees, on the 10th April 1793, executed a subsequent conveyance (which is recorded 14th November [214] 1793), whereby, for the causes therein specified, he conveyed the estate of Holmains, therein described as formerly belonging to Mr. Macrae, the pursuer's father, to and in favour of Charles Buncombe, esq. of Buncombe Park, in the county of York, Roger Pettiward, esq. of St. James' Street, Westminster, and John Gustavus Le Maistre, esq. of Lincoln's Inn, in the county of Middlesex, barrister-at-law, their survivors and assignees. That conveyance was also unqualified; but, on the 15th June, 22d and 29th August, and 30th September 1793, with the consent of Mr. Macrae and his wife (the aforesaid Maria Cecilia Le Maistre or Macrae'), these three persons granted a declaration of trust and obligation (recorded 14th November 1793) to denude of the said trust the said trustees, whenever required by Mr. Macrae, or by his heirs or disponees, and to re-convey the said lands and estates to him, or to any person or persons having right from him to the same. The trust also declared, that it was vested in the trustees only for the use and behoof of the said Mr. Macrae and his heirs and disponees, and for the proper support and maintenance of his wife and family, but in no shape for the use and behoof of the trustees or any of them. Some years after the date of that declaration of trust and obligation to denude, the trustees, by disposition of these dates, viz. 30th and 31st January, and 3d February, 1797, conveyed the estate to and in favour of the pursuer and his mother, Mrs. Maria Cecilia Le Maistre or Macrae, and his heirs and assignees whomsoever; whom failing, to and in favour of the said Mrs. Maria Cecilia Le Maistre or Macrae, and her heirs and assignees whomsoever, heritably and irredeemably. A real burden was also created by the same deed in favour of Miss Flora [215] Omont, who then resided with Mr. Macrae, of an annuity of 80 sterling. This deed contains the usual clauses, and one dispensing with delivery, and a power to the said trustees, and the survivors or survivor of them, to revoke or alter the same, upon proper onerous causes and considerations. This deed was duly ratified by Mr. Macrae on the 17th of February 1797, and, along with the ratification, was recorded in the books of Council and Session the 6th March 1798. Of the same date, Mr. Macrae likewise executed a disposition and assignation of the estate of Holmains to and in favour of the pursuer; whom failing, to and in favour of the said Maria Cecilia Le Maistre or Macrae, and her heirs and assignees whomsoever, heritably and irredeemably. This last conveyance, along with other clauses, contains a power to revoke or alter, as Mr. Macrae should think fit, a clause dispensing with delivery, etc. That deed was also recorded in the books of Council and Session on 6th March 1798. Subsequent to the date of these dispositions, the defender, now Mrs. Hyndman, was born; and the trustees, by disposition under reversion, dated the 2d and 6th February 1805, conveyed to her certain parts and portions of the estate of Holmains, redeemable by payment being made to' her, in case she should survive her father, of the sum of 5000 sterling, payable to her at the first term of Whitsunday or Martinmas after his death; and which sum of 5000 sterling, by a subsequent mandate granted to the trustees by her father, was declared to be in full of all that she could claim or demand by and through the contract of marriage betwixt her parents, after her father's death. This disposition was afterwards ratified and confirmed by Mr. Macrae. [216] On the 6th May 1807, Mr. Macrae, the pursuer's father, granted a formal mandate to the trustees, proceeding on the narrative of the foresaid disposition granted by them to the pursuer and his mother jointly, and to his heirs and assignees, and also the subsequent disposition and assignation granted to the pursuer 678 MACRAE V. HYNDMAN [1838, 1839] VI CLARK & FINNELLY. as an individual; whom failing, to his mother, and her heirs and assignees whomsoever, by his father; whereby, as specified in that mandate, for the more effectually accomplishing the purpose of these two several deeds, and for other onerous and good causes and considerations, he desired, authorised, directed, and appointed the said...
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