Pickard v Pickard. Pickard v Rice
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1962 |
| Docket Number | No. 59. |
| Date | 13 December 1962 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Wheatley.
TrustProof of trustProof by writ of trusterWrit alleged not to represent truster's true intention or true nature of transactionAdmissibility of parole evidence to explain or contradict writAct 1696, cap. 25.
The Act 1696, cap. 25, enacts, inter alia, that "no action of declarator of trust shall be sustained as to any deed of trust made for hereafter except upon a declaration or backbond of trust lawfully subscribed by the person alleged to be the trustee and against whom or his heirs or assignees the declarator shall be intented or unless the same be referred to the oath of partysimpliciter."
Over a long period a father purchased a large number of heritable properties as investments, his practice being to arrange for the titles to be taken in the name of one or other of his children, who were of full age. The properties were, however, administered by the father, who enjoyed the income from them. Disputes having arisen between the father and two of his children, he obtained from them written acknowledgments of the basis on which they held the properties. The acknowledgment by one declared that "all the heritable properties taken in my name which were bought and paid for by my father, Mr A. E. Pickard, are held by me on his behalf and for his benefit and to be managed and dealt with as he considers fit." The acknowledgment by the other was in similar terms. Subsequently, the father, founding on these writs, brought actions against the children, inter alia, for declarator that he was the true owner and beneficial proprietor of certain properties standing in their names. Proof habili modohaving been allowed in both actions, parole evidence was adduced as to the parties' intentions with regard to the properties, and, in particular, as to the pursuer's motives in having the titles taken in the name of his children. The defenders founded on the parole evidence as showing that, notwithstanding their terms, the written acknowledgments which they had granted did not truly represent the intentions of the parties with regard to the properties and did not therefore establish the existence of a trust.
Held (1) that the writs were declarations of trust, and (2) that, since they were not ambiguous, and since it was not conceded that they did not truly represent the transactions referred to, parole evidence was not admissible to explain or contradict them.
Albert Ernest Pickard brought actions of declarator and interdict against Angus Pickard and against Mrs Dorothy Pickard or Rice, who were respectively his son and his daughter. In each action the pursuer concluded, in the first place, for declarator that he was the true owner and beneficial proprietor of various heritable subjects vested in the defender.
The facts and circumstances in each case are summarised in the rubric and are sufficiently set forth in the opinion of the Lord President.
In each action the defender pleaded, inter alia:"(4) Separatim, the pursuer's averments so far as alleging the existence of a trust being provable only by the writ or oath of the defender, proof thereof should be restricted accordingly."
On 13th July 1960 the Lord Ordinary (Wheatley), having heard parties in the Debate Roll, allowed a proof habili modo in each case, and on 16th November 1961, having heard the proofs, his Lordship found that the pursuer was the true owner and beneficial proprietor of the heritable properties which were the subject of each action.
The following is the opinion of Lord Wheatley in the action against Angus Pickard.
At advising on 13th December 1962,
LORD PRESIDENT (Clyde).These two reclaiming motions raise substantially the same issues. The actions take the familiar form of actions of declarator of the existence of trusts. After a proof which, owing to the contentions based upon the 1696 Act, cap. 25, was a proof habili modo, the Lord Ordinary has found in favour of the existence of a trust in each case. The defenders have each reclaimed against his findings.
The actions were brought by Mr A. E. Pickard, who is the father of the two defendersI shall refer to him hereafter as the pursuerand the subject-matter of the trusts consists of certain heritable properties registered in the name of each defender.
The background to the dispute is briefly as follows:The pursuer has been engaged for many years (at the time of the proof he was eighty-seven years of age) in buying and selling and administering a very large number of let properties. He seems to have been the only really effective businessman in his family. He certainly made a great success of his operations. His practice was to arrange for the titles of the purchased properties to be taken in the name of one or other of his grown-up family. The Lord Ordinary was satisfied on the evidenceand, in my opinion, he was well entitled so to concludethat the pursuer decided which properties were to be purchased, that the pursuer negotiated the acquisitions, and that he paid for the properties out of his own money and himself decided in whose name the property title was to be taken. Moreover, the properties were administered by him in his own office, the rents being collected on his behalf and paid into the pursuer's bank account, which stood in his own name, without any regard to which member of the family was registered as owner of the
property in the register. The outlays, including Schedule A assessments, were met out of this same bank account. If a property was sold, the pursuer decided upon this and carried out the sale. The net income from the properties was never handed over to the children, but the pursuer paid to each of them quite generous lump sums from time to time when they required money. These sums, however, bore no relation to the net receipts of the properties standing in the particular child's nameIn the action against the son, Angus, the main defence was that all the properties in his name were bought and paid for by him. The Lord Ordinary rejected this contention and did not believe the son's evidence. He was well entitled so to do, and the Lord Ordinary's conclusion is supported by the documentary evidence. In the action against the daughter, Dorothy, her main defence was that the properties in her name were purchased with her money by her father as her agent. In evidence, however, she gave up this defence and alleged that her father bought the properties put in her name, and gave them to her. This defence the Lord Ordinary rightly rejected. In the light of this background I now turn to the main issue.
Disputes appear to have arisen between the pursuer and his children in 1953, when he married for a second time, after the death of his first wife. The children began to take steps to sell certain of the properties in their names. In consequence the pursuer took written acknowledgments from them. It is upon these acknowledgments that the issue of trust arises in the two cases in question in these reclaiming motions. The letters in each case are substantially in the same terms, and for simplicity I shall consider the writ in Angus's case. This writ is of course the foundation of the pursuer's case. The writ in Angus's case was not admitted by him and it was consequently necessary for the pursuer to prove it. At one stage, indeed, Angus maintained that the writ had been extorted from him by force and fear. But this contention was given up before the proof.
The proof has established that the son Angus did grant in the pursuer's favour a signed holograph declaration on 29th October 1953 in terms of which he declared that "all the heritable properties taken in my name which were bought and paid for by my father, Mr A. E. Pickard, are held by me on his behalf and for his benefit and to be managed and dealt with as he considers fit." The main question in the case is as to the effect which the law gives to this declaration.
At one time the law of Scotland permitted the existence of a trust to be proved by parole evidence. But this led to abuses (see Gloag on Contract, (2nd ed.) p. 386) and consequently the Act, 1696,1was passed. This Act, which is still in operation, has very severely curtailed the extent to which parole evidence regarding trusts is permitted.
The Act provides that "no action of declarator of trust shall be
sustained as to any deed of trust made for hereafter except upon a declaration or backbond of trust lawfully subscribed by the person alleged to be the trustee and against whom or his heirs or assignees the declarator shall be intented or unless the same be referred to the oath of party simpliciter."The pursuer's contention is that the document which I have just quoted is a declaration of trust within the meaning of this statute. In Dickson on Evidence, section 583, the test is laid down as follows:"With regard to the writs by which trust may be proved, any holograph or probative writing signed by the trustee, which fairly implies a trust, will suffice, although it is neither a formal deed nor an express admission of trust." (Compare Bell's Principles, sec. 1995.) In my opinion, the declaration in question clearly satisfies these requirements and establishes the existence of the trust which the pursuer set out to prove. That is enough for the disposal of the main issue in the case.
It was contended, however, for the defender that, in determining the question of whether a trust existed, the Court was entitled to have regard to the parole evidence of the...
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