Scottish Court of Session Decisions

Subject_1 LEGACY.

Marion Wright and her Husband
v.
Margaret and Mary Wrights

Date: 11 February 1761
Case No. No 36.

Legacy cannot be constituted in the form of a bill.

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John Wright of Easter-glins died in 1751, leaving issue, Thomas Wright, who succeeded him in his land-estate, and Margaret and Mary Wrights, who succeeded to the esecutry.

Thomas Wright the son had a natural daughter named Marion, who, at the age of ten, had been taken into John Wright's family; and a year before his death, when she was about 16 years old, received from him a bill drawn in her favour for 1000 merks Scots, payable the first term of Martinmas after his decease.

In a process at Marion's instance against her father the heir, and against Margaret and Mary Wrights the executors of John, before the Sheriff of Stirling, for payment of this bill, the Sheriff having, before answer, ordained the pursuer to condescend on the value for which the bond was granted; Marion condescended, “That she had served John Wright as his house-keeper for seven years and upwards, and that the bill had been granted in payment of her wages for said service.” At the same time she acknowledged, that there had been no particular stipulation for wages. The Sheriff sustained the bill as a good ground of debt, and decerned for payment.

Pleaded for Margaret and Mary Wrights, in a suspension of this decree; From the charger's own condescendence, it is plain, that no value was given for this bill; she was but ten years old when she went to live in Mr Wright's house, and she was only seventeen when he died, so that her services when in his family were of very little value; he did not keep a servant less upon her account; and, at any rate, her aliment, during that time, was a sufficient recompense for her supposed services. The bill therefore must be considered as a mere donation or legacy; which is further evident from this, that it was taken payable at the first term after the granter's death, which might not have happened for 20 or 30 years from the date. A writing of this kind is null and improbative by the law of Scotland, being destitute of those solemnities required by the act 1681. It is true, that bills are an exception from the statute, and have many extraordinary privileges; but then they must be confined to their own proper sphere of facilitating commerce; when converted to other uses, they have no privilege, and are altogether improbative, as not clothed with the legal solemnities. The constituting a donation or legacy, is a transaction in which trade is no way concerned; and therefore a bill granted in that view, and for that purpose, is a null deed; so it has been found in a variety of cases, 13th February 1724, Hutton contra Huttons, No 19. p. 8062.; Home, 9th November 1722, Fulton and Clerk contra Blair, No 16. p. 1412.; 3d December 1736, Weir contra Parkhill, No 17. p. 1413.

Answered for Marion Wright; There is no doubt of Mr Wright's intention to bestow this liberality upon her; and the intention was highly reasonable; she attended and nursed him during the last years of his life, as it became a dutiful child towards an aged and declining parent. Had she not been in her grandfather's house, she might have been in other service, and earning a stock for herself. It will therefore be hard if she is allowed nothing in name of wages from her grandfather, when it evidently appears to have been his intention that she should have them. The bill cannot be considered as gratuitous. The onerous cause was seven years service and attendance upon her grandfather. In the case Fulton and Clerk contra Blair, it was acknowledged, that no value was paid for the bills; and the decision seems to imply, that if any onerosity had been condescended on, the bills would have been sustained; besides, there does not appear any solid reason why a man may not make a present by bill; and if it bears value, why it should not be binding as effectually as if value had been given. The onerous cause is the will of the accepter, which says, he shall be owing such a sum to the drawer. In the case of Barber contra Hair, 8th February 1753, No 311. p. 6097. the Court sustained blank indorsations to bills by a husband to his wife upon death-bed. Indorsations are new draughts upon the accepter in favour of the indorsee, and are of the same nature with bills; yet these indorsations were sustained, though acknowledged to be on death-bed, and gratuitous.

Replied for the suspenders; The case of Barber against Hair does not apply. The only question there was, Whether a gratuitous indorsee was entitled to take the debt? This was no constitution of a new debt, but only a transmission of a debt formerly created; and although value is absolutely necessary to the constitution of a bill, yet where once constituted, there is no doubt that it may be properly transmitted by indorsation without any value paid by the indorsee. Such indorsations are every day practised, and are indeed necessary in the course of trade, as bills are often put into the hands of trustees in order to recover payment.

Suggested on the Bench; That though the writing founded on was not a proper bill, it might be sustained as evidence of a legacy, along with other circumstances; but the plurality were of opinion, that it was totally null.

The Lords found, that the bill in question appearing to be of the nature of legacy, was not a sufficient ground of action, and would not be astructed by collateral evidence.

For the Charger, Walter Stewart. For the Suspender, Macqueen. Clerk, Kilpatrick. Fol. Dic. v. 3. p. 374. Fac. Col. No 20. p. 37.

*** See a similar decision 29th Jan. 1782, M'Arthur Stewart against Fullarton, No 13. p. 1408. voce Bill of Exchange.