M'Murrich's Trustees v M'Murrich's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1903 |
| Date | 18 November 1903 |
| Docket Number | No. 19. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Proof—Mandate—Innominate Contract—Parole Agreement between two persons to divide funds destined by statute to survivor—Proof of authority to agents to conclude such an agreement—Writ or Oath.—
Certain funds were by a private Act of Parliament destined to A in liferent and to the survivor of himself and his nephew B in fee. After the death of A his representatives brought an action against B, the survivor, concluding for declarator that it had. been agreed between A and B that on the death of either the funds in question should be divided equally between the survivor and the representatives of the predeceaser, and for payment of one-half of the funds.
The pursuers averred that a final agreement to this effect had been concluded by parole between the agents of the parties, acting upon their express instructions, and that a deed giving effect to the agreement had been revised and approved in draft and extended, but that A had died before the deed was signed by either party. They further averred that it was agreed that there should be no suspension of the agreement pending the execution of the formal deed.
Held that the alleged agreement could only be proved by writ or oath, on the ground that the contract averred was of an unusual and innominate character.
Per Lord M'Laren,—A right of succession constituted by writing can only be transferred by writing.
In the year 1879 the lands of Stuckgown were sold under a private Act of Parliament,1 and the price was invested in the hands of trustees under a destination specified in the statute. In 1902 James M'Murrich, Stuckievoulich, Tarbet, was the liferenter of the funds, and the fee stood destined to the survivor of himself and his nephew Peter M'Murrich, Faskadail, Dunblane, James M'Murrich at that date being ninety years old, and Peter seventy-six.
James M'Murrich died upon 10th October 1902, leaving a trust-disposition and settlement dated 22d March 1895.
On 15th November 1902, Marcus John Brown, S.S.C., Edinburgh, and others, the trustees under James M'Murrich's settlement, brought
an action against Peter M'Murrich, in which they concluded for declarator that on 10th October 1902 an agreement was made between James and Peter M'Murrich to the effect that on the death of either, the fund should be divided equally between the survivor and the representatives of the deceaser, instead of the whole passing to the survivor, ‘and that the agreement made … as aforesaid is a valid and effectual agreement, and that the same was and is now binding upon the defender.’ The summons also contained conclusions for an accounting and for payment of £16,500, or such other sum as should be ascertained to be one-half of the funds in question.
The pursuer averred that for some time prior to the death of James M'Murrich, he and the defender Peter M'Murrich were the only persons entitled to succeed to the funds held by the Stuckgown trustees, and that under the Act the survivor would be entitled to the whole funds, and that an arrangement between the two beneficiaries was proposed. (Cond. 10) That on 10th October 1902 a meeting was held at which Mr Barty junior, agent for Peter M'Murrich, and Mr Marcus Brown, agent for James M'Murrich, met for the purpose. ‘The agents were acting on the express instructions, and with the full authority of their respective principals, to conclude an agreement in the matter.’ (Cond. 11) That a draft agreement, prepared by Messrs Barty, Peter's agents, was accepted and initialled by Mr Brown as revised on behalf of James. ‘A final agreement to the effect stated in the summons was at said meeting concluded by the respective agents for the parties. Said agreement was intended to be, and was thenceforth, and is now, binding upon the parties and their representatives, and that apart altogether from the execution of the formal deed expressing its terms.’ (Cond. 12) ‘It was at said meeting arranged, in consequence, as the narrative in said draft deed sets forth, of both parties being in feeble health, that the deed should be extended and signed forthwith, but it was the intention of parties, and it was agreed, that there was to be no suspension of the said agreement pending execution of the formal deed, but that...
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