Mrs. Maria Campbell Stewart, Appellant. - Pemberton-Sir William Follett; Ferdinand S. C. Stewart, and Attorney and Mandatory, Respondents. - Dr. Lushington-James Russell
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1839 |
| Date | 03 June 1839 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 147
APPEAL FROM THE COURT OF SESSION, SCOTLAND.
Mews' Dig. iii. 2031. S.C. 6 Cl. and F. 911. See Cooper v. Phibbs, 1867, L.R. 1 H.L. 149, and notes to Stapilton v. Stapilton, 1 Wh. and T.L.C., 7th ed. 223.
Agent and Client - Transaction.
[401] APPEAL FROM THE COURT OF SESSION, SCOTLAND. Mrs. MARIA CAMPBELL STEWART,* Appellant.-Pemberton-Sir William Fol-lett; FERDINAND S. C. STEWART, and Attorney and Mandatory, Respondents.-Dr. Lushington-James Russell [3d June 1839]. [Mews' Dig. iii. 2031. S.C. 6 Cl. and F. 911. See Cooper v. Phibbs, 1867, L.R. 1 H.L. 149, and notes to Stapilton v. Stapilton, 1 Wh. and T.L.C., 7th ed. 223. Agent and Client-Transaction.-Where a deed of agreement of compromise of their respective claims to the succession of a deceased relation had been settled and executed by three parties, one of whom afterwards brought an action of reduction of the, agreement on the ground of lesion, through erroneous advice of her law agent, who was agent also of the two other parties, as to her legal rights, of which she was ignorant:-Held (affirming the decision of the Court of Session) that, upon the facts and written evidence of the transaction, the party had failed to establish relevant grounds for disturbing the agreement. Frederick Campbell Stewart, a native of America, now deceased, succeeded in 1815 as heir of entail to the estates of Ascog and Whitebarony. Having been advised to sell the lands, Mr. Stewart instituted proceedings in the Court of Session to ascertain his powers under the entail; and the Court found, that although he was not effectually prohibited from selling the lands, he was bound, if he did sell, to rein-[402]-vest the price in the purchase of other lands to be settled on the same series of heirs (F. C., and 5 S. and D. 418). Mr. Stewart appealed to the House of Lords against the finding as to reinvesting the price of the lands; and while the fate of that appeal was still uncertain Mr. Stewart, in 1826 and 1827, executed various deeds, providing for the event either of a reversal or affirmance, in favour of Mrs. Stewart his wife, of his two daughters, of his brother Professor Ferdinand Stewart, and of his sister Mrs. Anna Stewart. Mr. Stewart and his daughters soon afterwards died in France. In 1830 the House of Lords, reversing the decision in the Ascog Cause (4 W. and S. 196), found that Mr. Stewart was under no obligation to reinvest the price in the purchase of other lands. Mr. Wardlaw, the law agent in Edinburgh of Mr. Stewart's widow and nearest of kin, entertaining doubts as to their respective rights, obtained the opinion of counsel f upon a memorial for the trust disponees of Mr. Stewart. * Rep. 15 D., B., and M., 112. t " Opinion by Francis Jeffrey, Esq. and Andrew Rutherf urd, Esq., upon Memorial and Queries for the Trust Disponees of Frederick Campbell Stewart, Esq., of Ascog. " 1, 2, 3, 4. In the event of its being decided in the House of Lords, reversing the judgment of the Court of Session, that the price drawn by Mr. Campbell Stewart is not subject to reinvestment as a surrogatum for the entailed estate, there can be no doubt that the price, along with the other moveable funds vested in the memorialists, must be held to have been the personal property of their constituent, and must be dealt with accordingly. " The domicile of Mr. Stewart is of importance chiefly, it appears to us, as regulating the domicile of his daughters, who died before they had obtained any domicile of their own independently of his. The only question here is between the American and the Scotch domicile; for we see no ground whatever upon which it can plausibly be argued that he obtained any domicile on the continent of Europe. The claims of the Scotch domicile, and of the Scotch law in virtue of it, to regulate 147 MACLEAN & ROBINSON, 403 STEWART V. STEWART [1839] [403] The parties having been advised by counsel to settle by compromise questions which appeared to be of a [404] difficult nature, a deed of agreement was entered into between Mrs, Stewart the widow, and Ferdinand Stewart and his sister Anna Stewart, which, after getting forth the particulars as to the succession and the uncertainty of the rights of parties connected therewith, contained a stipulation that the three parties, " with a view to avoid litigation, and being mutually disposed to an amicable arrangement," consented and agreed that the free proceeds of the whole estate and effects other than the entailed estate should be divided equally among them. Mrs. Stewart subsequently brought an action of reduction for the purpose of setting aside this agree-[405]-ment, and in support of her action pleaded:-1. That the agreement had been brought about by undue concealment and misrepresentation of her rights, and her apparent consent obtained to a deed, the real meaning and import of which, as affecting her legal rights, she did not understand. 2. The agreement had been entered into when she and the other parties thereto were ignorant of the rights conferred upon her by the last will and testament of Mr. Stewart, and when they had in view only the deeds referred to and specified in the said agreement; she also pleaded that upon the said agreement being reduced she would be entitled, independently of the said will or testament, to claim as at the death of her husband, both by the law of Scotland and by the law of Virginia, which was that of his domicile, the full third share of all his personal estate and effects; and also to claim during her life, by the law of Scotland, the third part of the rents of any heritable property in Scotland in which her husband was infeft at the time of his death, as well as certain other benefits from which she had been excluded by the agreement. It was pleaded in defence,-1. The grounds of reduction were not relevant, or sufficient in law to support the conclusions of the action. 2. The pursuer was not ignorant, but cognizant of her rights, and of the deeds by which the same were the moveable succession of Mr. Stewart and his children, is certainly attended with a great deal of difficulty, principally because of the fact, that he had unquestionably an American domicile before he came to this country; that it is a rule very general, in reference to intestate succession, though not, perhaps, without exception, that there can be only one domicile, and that a domicile once established cannot be lost, except by actual acquisition of another domicile; and that there is an absence of any proper residence or abode in Scotland. At the same time, there are many strong circumstances on the other side; and we are certainly not prepared to say that this is a case in which the Scotch law, which must be appealed to in the first instance, will feel itself to be controlled by the American domicile, and constrained to surrender the property within its jurisdiction to the distribution of a foreign law. We may add, too, that considering the property as in bonis of the children, the difficulty of the case appears to be somewhat increased, in consequence of the father's deed vesting the funds in the hands of Scotch trustees, and appointing them, at the same time, to be tutors and curators to his children. " With respect to Mr. Campbell Stewart himself, we are of opinion that he must be held to have died testate, although, at the same time, it is not quite free of question, whether, under the particular provisions of this deed, the shares which are declared to be payable to the children or survivors on majority or marriage, vested in the children by the mere survivance of the father, or lapsed in consequence of their predecease before marriage or majority; and on the supposition of their lapsing, the whole funds must be held to be still in bonis of Mr. Campbell Stewart, and to be distributable as his intestate succession, seeing the trust deed makes no destination of his property, beyond his children and their issue. If, however, as we rather hold, the shares vested in each child upon survivance, then the funds must be distributed as the intestate succession of the children; and we are inclined to think that, in their case, there are some circumstances which strengthen the right of those whose interest it is to claim under the Scotch law. " We have chosen rather to state where we conceive the difficulties to lie, than give any direct opinion upon the questions which suggest themselves; because, before forming a satisfactory opinion, some farther information may be necessary as to the facts; and because, in so far as regards the memorialists, or any practical 148 STEWART V. STEWART [1839] MACLEAN & ROBINSON, 406 regulated, when she executed the agreement sought to be reduced. 3. That she had homologated the agreement and transaction. After closing the record and hearing parties. Lord Cockburn, Ordinary, pro nounced the following interlocutor:-"The Lord Ordinary having considered the closed records and productions, and heard parties, [406] both of whom have re nounced farther probation, finds, that the pursuer has not established any sufficient ground for setting aside the agreement brought under reduction; sustains this de fence, assoilzies the defender, and decerns: finds the pursuer liable in expenses, appoints an account thereof to be given in, arid, when lodged, remits the same to the auditor to tax and report. (Signed) H. cockburn." " Note.-The pursuer wishes to reduce a contract by which a portion of her deceased husband's property was divided into three parts, of which she got one, and his brother and sister two, on the ground that she was thereby materially injured, and was led into the bargain from ignorance of her legal rights. " The fact of her being materially injured, if the whole risks be taken into view, is...
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Mrs. Maria Campbell Stewart, - Appellant; Ferdinand Stewart Campbell Stewart, and Other, - Respondents
...OF SESSION. Mrs. Maria Campbell Stewart -Appellant Ferdinand Stewart Campbell Stewart, and Other -Respondents Mews' Dig. iii. 2031; S.C. Macl. and R. 401. See Cooper v. Phibbs, 1867, L.R, 2 H.L, 149; and notes to Stapilton v. Stapilton, 1 Wh. and T.L.C., 7th Ed. 223. [911] APPEAL from the c......