M'Laren v Howie, Company
| Jurisdiction | Scotland |
| Judgment Date | 06 November 1869 |
| Date | 06 November 1869 |
| Docket Number | No. 36 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Barcaple. B.
Trust—Provision—Legacy—Payment by Anticipation.—
Proof—Trust—Provision—Payment by Anticipation.—
Proof—Writ—Receipt.—
Trust—Approbate and Reprobate.—
THIS was an action of count, reckoning, and payment by Mrs Ann Howie or M'Laren, daughter of the late Mr Howie, farmer, Boghall, Perth, against his trustees. By his trust-settlement, dated in 1846, Mr Howie bequeathed to Mrs M'Laren the sum of £25, and directed his trustees to deliver to her a bill for £15, granted to him by her and her husband. The settlement contained other legacies to other members of the family, and this general declaration,—‘And I declare the provisions hereby conceived in favour of my children to be in full to them of all legitim, bairns' part of gear, or other claim whatsoever.’
Mr Howie died in 1855, but the action was not raised till 1868.
After the record was closed the pursuers obtained leave to amend it, to the effect of claiming the legacy of £25 above referred to.
The defenders stated that the pursuers knew of the provisions in their favour in Mr Howie's trust-deed, and particularly,—(Stat. 8) ‘During the lifetime of the said Thomas Howie the female pursuer was frequently in the habit of writing letters to him, complaining of want of money.
…. In order to relieve his said daughter, the said Thomas Howie in his lifetime made several payments to her in anticipation and satisfaction of the specific legacy bequeathed to her in his deed of settlement. The said payments, at least, amounted to the sum of said bequest, and were accepted by the female pursuer and her husband as in payment and satisfaction thereof.’ (Stat. 9) ‘Accordingly, the pursuers subscribed and transmitted to the said Thomas Howie a receipt in the following terms:—” Edinburgh, 9th September 1853.—I, Mrs Ann M'Laren or Howie, spouse of Peter M'Laren, officer of excise, Edinburgh, with consent and concurrence of my said husband, and him for his interest, grant me, the said Ann M'Laren or Howie, to have at different times received from Mr Thomas Howie, farmer, Boghall, my father, sums amounting in whole to £40 sterling, being in full of my share of the estates and effects of the said Thomas Howie, and of the late Mrs Ann Baxter or Howie, his wife, which would fall to be paid to me or my children by and through the decease of my father, he and his heirs, executors, or representatives being discharged of all claim competent to us, or either of us, in any manner of way.” (Signed) “ANN M'LAREN, PETER M'LAREN. £40 stg.”’ The receipt quoted was neither holograph nor tested.
On 4th March 1869 the Lord Ordinary pronounced this interlocutor:—‘The Lord Ordinary having heard,’ &c, ‘finds that the pursuers now claim, under the conclusions of the summons, the sum of £25, bequeathed to the female pursuer by her father, the deceased Thomas Howie, in his disposition and settlement: Finds that by so claiming the pursuers homologate and approbate the said disposition and settlement, and are thereby precluded from claiming legitim: Finds that the defenders do not allege that at the death of the said Thomas Howie he had any claim of debt against the pursuers, or either of them, in respect of advances made by him to the female pursuer, or otherwise: Finds that the defenders aver that during his life the said Thomas Howie made several payments to the female pursuer in anticipation and satisfaction of the specific legacy bequeathed to her in his disposition and settlement, amounting, at least, to the said bequest, which were accepted by her and her husband as in payment and satisfaction thereof, and that accordingly they subscribed and transmitted...
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