Mrs. Maria Campbell Stewart, - Appellant; Ferdinand Stewart Campbell Stewart, and Other, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 03 June 1839 |
| Date | 03 June 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 940
FROM THE COURT OF SESSION.
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 court of sbssion. Mrs. MARIA CAMPBELL STEWART,- Appellant; FERDINAND STEWART CAMPBELL STEWART, and Other*,- Respondents [Feb. 15, 19, 20, 26, and 27, March 1, 1838 ; June 3, 1839]. [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.] The widow, brother, and sister of an American who died in Italy, leaving considerable personal estate in the hands of trustees in Scotland, agreed, by advice of * The Court of Queen's Bench, in Wamstatt v. Pooley, Mich. Term 1841, acted upon this principle in a very decided manner. A cornfactor was absent from his shop, and during his absence his sister managed the business. She wanted to send out some corn to a customer, and for this purpose she employed a person who occasionally worked for her brother, and who at the time of such employment was in a sitate of inebriety. This man (contrary to the practice of the oornfactor's shop) took out the corn, on a small warehouse truck, which he negligently left in the road, whereb^ a person driving along in a chaise was injured. The coraf actor was held liable in^an action at the suit of this person, on the ground that the employment of a tipsy man was an act of negligence, and that by such employment he set the whole thing in motion; and must therefore be answerable for the consequences. - MS. ' 940 STEWART V. STEWART [1838, 1839] VI CLARK & FINNELLY. their law agent, to compromise their respective claims to the succession by taking equal shares. The widow, after receiving heir share, brought an action in Scotland to rescind the agreement, on the ground of having thereby sustained injury through ignorance of her legal rights, and the erroneous advice of the law agent. There was no allegation of fraud against him or against the parties to the agreement: - Held that, although the fair inference from the evidence was that she was ignorant of her legal rights, and would not have entered into the agreement had she known them, yet, as the extent of her ignorance and of the injury sustained was doubtful, and there was no proof of fraud or improper conduct on the part of the agent, she was bound by his acts and affected by the knowledge which he was presumed to have of her rights, and was therefore not entitled to disturb the arrangement. This was an appeal against interlocutors pronounced in an action brought by the Appellant to reduce an agreement into which she had entered with the above-named Respondent and another person, who was not a party to the action. [912] The succession to the estate of Ascog, in the county of Bute, and to other estates in the counties of Argyle and Peebles, in Scotland, was opened, on the death of Archibald M'Arthur Stewart, in 1815, to Frederick Campbell Stewart, the Appellant's late husband, as heir male of tailzie and provision under two deeds of entail, one executed in 1763 by John Murray, or Stewart, the other in 1783 by the said A. M'Arthur Stewart. Both deeds contained prohibitions against selling the entailed estates, but no corresponding irritant and resolutive clauses in case of contravention of the prohibitions. Frederick C. Stewart was a barrister in the city of Westmoreland and state of Virginia in America, of which he was a native, having been born there in 1787. The Respondent, his brother, was born in the same state, and was professor in a, college there. John Campbell, their father's younger brother, was a barrister in the same city and state, but he was born in Scotland. On his suggesting a doubt, when the account of Mr. M'Arthur Stewart's death reached them, whether he or his elder nephew Frederick was entitled to succeed to the entailed estates, they entered into an agreement, to which the Respondent was a party, and by which, after reciting that it was uncertain on whom devolved the title to the succession, and that they were anxious, without regard to the strict right of either, to divide the estates in the most equitable manner among them, the three mutually bound themselves, their heirs, etc., that whilst any of them should be in possession of the entailed estates, he should pay to each of the other two, their heirs, etc., one^fourth part of the free yearly rents or income thereof; and that if any of the three, having attained such possession, should die, leaving a widow, and she should take dower, his heirs should make up to the [913] other two their full proportion of the benefitsi granted them by the agreement. Frederick C. Stewart came to Scotland in 1815, took up the succession to the entailed estates, and after travelling through England, France, and other states of Europe, without acquiring a fixed residence in any, returned to America in 1819. No payments were ever made in fulfilment of the agreement. In 1820 he came again to Scotland, thence proceeded to London and Paris, and for several years travelled about for the benefit of his health, accompanied by his wife, the Appellant, who was a-n American, and two- daughters, one by the Appellant, and born in France, the other by a former wife. He carried on in the meantime a constant correspondence with Messrs Gibson-Craigs and Co., his solicitors and agents in Scotland, more particularly with Mr. Wardlaw of that firm, respecting the entailed estates. Having no son to succeed him, (the destination being to heirs male,) and being desirous, in order to make provision for his daughters, to take advantage of the omission of irritant clauses in the deeds of entail applicable to an infraction of the prohibitions to sell, he instructed his said agents to sell the estates, and also to bring an action of declarator in the Court of Session against the heirs substitute of entail, to ascertain and establish his power to sell. The Court of Session held in that action that the heir in possession had power to sell, and the sales would be effectual to the purchasers, but that the proceeds should be vested in the purchase of other estates, to be settled on the same series of heirs as those specified in the entails (4 Sha.w and D. 418). From that [914] decision Mr. Frederick Stewart appealed to the House of Lords. 941 VI CLARE & FINNELLY. STEWART V. STEWART [1838, 1839] While the appeal was pending, a case was decided in the Court of King's Bench, in England, to the effect that persons born in the United States of America, after the recognition of their independence by the Crown of Great Britain, were aliens, incapable of inheriting lands in England (Doe dem. Thoirnas v. Acklaan, 2 Barn, and C. 779). Mr. C. Stewart, alarmed at the application, of that decision to his own situation, and fearing that his uncle would avail himself of the law so laid down, instructed Gibson-Craigs and Co. to apply for a.n Act of Naturalization, for him, and for that purpose he came to London in June 1825. One of the entailed estates had been previously sold for 26,000, and that sum was put out to interest pending the appeal. The result of the application for the Act, as well as the appeal to the House of Lords, being yet uncertain, Mr. C. Stewart, with a view to either event, executed in London a bond of provision in favour of the Appellant, under the then recent Act 5 Geo. 4, o. 87; and he thereby granted to her for her life, in case she sltould survive him, an annuity of 800, being one-third part of the free yearly rents of the entailed estates, or of the interest of the prices of them, if his power to sell without re-investing should be held valid; and he declared that the same should be accepted by her in full satisfaction of all life-rent provision, terce of lands, half or third of moveables, and everything else, which she, her heirs, etc., could claim of him, his heirs, etc., in case she survived him. The Naturalization Act was passed in May 1826; Mr. C. Stewart went to Edinburgh ; and after con-[915]-sultation there with his agents, he ratified the bond of provision for his wife, and also' bonds of provision which he had executed in 1824 in favour O'f his children, under and to the extent of his power by the said Act of 5 Geo. 4. He also executed in Edinburgh, on the 2d of September 1826, a trust disposition and settlement of all his means and estates, heritable and moveable, in Great Britain, then belonging or which should belong to him at the time of his death, in favour of James Gibson-Craig, David Wardlaw, and James Thomson Gibson-Craig, esquires (all of the firm of Gibson-Craigs and Co.), and the survivor of them; and he thereby directed them, his trustees, to pay the Appellant for her life, if she should survive him, one-third of the free annual income of the trust estate, under a declaration that the sum provided by the bond of provision in her favour should, so far as made good to her, be reckoned as part of the said third; and if the yearly sum received by her in virtue of the bond should be equal to1 or exceed the third of the free annual income of his property (exclusive of the entailed estates of which he might die in possession), she should have no claim on the property conveyed by this disposition to' his trustees : they were to divide the residue of the trust estate equally among the children of his first and second marriages, or of any marriage he might thereafter enter into, who should not succeed to the entailed estates, the share of each to be payable at his or her attaining majority or being married; and he appointed his said trustees his executors, and tutors and curators of his children during their minority. This deed contained the usual reservation of the maker's life-rent, power to revoke and...
To continue reading
Request your trial
-
Jenner v Jenner
...nor for the benefit of the family. If authority is wanted for the doctrine on which my opinion rests, I refer to Stewart v. Stewart (6 Cl. & Fin. 911); Baker v. Bradley (7 De Gex, M. & G. 597); Dimsdale v. Bimsdale (3 Drew. 55f ), and Hartopp v. Hartopp (21 Beav. 259), which seem to me to b......
-
Forster v Forster
...1 H. Bl. 271. (18) L. R. 9 Ap. Cas. 434. (19) L. R. 6 H. L. 223, 234. (20) L. R. 6 Ap. Cas. 181, 190, 191. (21) L. R. 20 Eq. 698. (22) 6 Cl. & Fin. 911. (23) 3 Sw. 1. (24) Chan. Prec. 518. (25) L. R. 5 H. L. 656, 674. (26) 2 Sch. & Lef. 607, 633. (1) 3 De G. M. & G. 782. (2) 4 Y. & C. (Ex.)......
-
Mrs. Maria Campbell Stewart, Appellant. - Pemberton-Sir William Follett; Ferdinand S. C. Stewart, and Attorney and Mandatory, Respondents. - Dr. Lushington-James Russell
... ... 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 ... ...
-
Potts v Surr
...De G. M. & G. 621). [544] Mr. Hobhouse and Mr. Pearson, for Mr. Surr. They cited Bellamy v. Sabine (2 Phill. 438); Stewart v. Stewart (6 Cl. & Fin. 911); Lawton v. Oa/iipim (18 Beav. 87). Mr. Everitt, for Reed. Mr. Colt, for the Plaintiff's brothers, referred to Petre v. Espinasse (2 Myl. &......