son, shall be as valid and sufficient as if delivered in our own life- 22 Nov. 1831. • time.' Brownlee and Others. Thereafter (31 August 1822,) Mrs Denholm executed a deed, Others v. which, after narrating shortly the previous mutual disposition, pro- Waddell and ceeds thus: And farther, considering, that since the date of the said mutual disposition, the means and estate of the said James Denholm has considerably increased; and he having, while in extreme ⚫ bodily bad health, but in sound mind, expressed a wish, that the onehalf of the free residue and balance of his means and estate, house' hold furniture excepted, subject to my liferent right, and under 'the declaration and provision after written, should be disponed ' and made over to the persons after named, being his nearest relations, and I, being desirous to fulfil and obey the wishes of my ⚫ said husband in all respects, do therefore hereby, under the provision ' and declaration after mentioned, dispone, convey and make over to and in favour of Mrs Helen Mann or Pender, spouse of Tho'mas Pender, comptroller of stamps, and Mrs Ann Mann or Hill, 'spouse of James Hill, and George Brownlee, (father of the pursuers,) presently employed in the office of my said husband, and their heirs, share and share alike, All and whole one-half of the 'free residue, (household furniture excepted, which is hereby re'served for my own disposal,) of the means and estate of my said husband, as the same shall be ascertained at my death, the same being always subject to my liferent use, as before mentioned; ' and declaring also, as it is hereby specially provided and declared, ⚫ that in the event of its being thought advisable by the said Thomas Pender, and by William Waddell of his Majesty's Printing "Office, John Smith, spirit-dealer in Edinburgh, and Francis Wilson, writer to the signet, (whose advice I am requested by my said ⚫ husband to take,) or to any two of them, to purchase a life annuity, for my more comfortable subsistence, with part of the means and 'estate of my said husband, as they may stand at his death, that I 'shall be at perfect liberty so to do, notwithstanding these presents, and that the said Helen Mann, Ann Mann and George Lees, or 'their foresaids, shall have no right or title whatever to interfere with 'the purchase of the said annuity, or be entitled to any consideration 'therefor at my death, notwithstanding the one-half of my said hus• band's means and estate, above provided for them, may be thereby • diminished-under which declaration and provision these presents are granted, and no otherwise.' 6 6 Mr Denholm died the following day, and at the meeting after his funeral, the deed of 1816 was produced by Mr Francis Wilson, the agent of Mr and Mrs Denholm, and ordered to be recorded; and he also exhibited the deed executed by Mrs Denholm in 1822; but 22 Nov. 1831. this the meeting request Mr Wilson (the agent) to keep in his possession, for the behoof of all concerned.' Afterwards Mrs Denholm, as executrix and disponee under the mutual deed of Waddell and 1816, gave up an inventory of the estate, and continued to possess the whole property down to her death, until which period, the above deed executed by her remained in Mr Wilson's custody. Brownlee and Others. Pursuers' Defenders' In July 1828, Mrs Denholm executed a new settlement and trust-deed of her whole property, including that contained in the deed 1822. The deed conveys the whole of Mrs Denholm's property, real and personal, to the present defenders, as her trustees, for various uses, ends and purposes, and contains a special clause, revoking and recalling all deeds formerly executed by her. Mrs Denholm died 28 July 1829, and the defenders (the trustees named in the last deed) entered into the possession and administration of the property. Thereafter the pursuers, the children of George Brownlee, (one of the parties favoured by the deed of 1822,) brought the present action of count and reckoning against the defenders, founding upon the deed 1822, which, they maintained, gave them a right to a third share of half of the property and effects left by Mrs Denholm (exclusive of the household property) at the time of her death, and which she had no power to alter. In support of the action the pursuers pleaded-1. The mutual disposition and conveyance, executed by Mr and Mrs Denholm on 22 June 1816, was a deed revocable by both, or either of these parties, during the subsistence of the marriage, and was effectually innovated and altered by the deed executed by Mrs Denholm on 31 August 1822. 2. The disposition and deed of conveyance, executed by Mrs Denholm on 31 August 1822, was a completed, absolute and irrevocable conveyance of the property thereby conveyed, and could not be revoked, cancelled nor altered in any respect by her. Unless this deed had been executed by Mrs Denholm, the presumption was, that one to the same effect would have been made by her husband, in whose power it clearly was to have executed such a deed; for the narrative, which neither Mrs Denholm, nor any in her right, can dispute, set forth, that it was executed in compliance with his wishes. Pleaded for the defenders-1. If the deed of 1822 could even have been held (as alleged by the pursuers) to constitute or import a personal obligation upon Mrs Denholm, in favour of the present pursuers, it would have been wholly null and ineffectual, that Brownlee and deed having been executed by Mrs Denholm, stante matrimonio, 22 Nov, 1831. and without the consent or concurrence of her husband, which consent or concurrence could only have been competently given or proved Others v. by the husband being made a party to the deed, or at least by wri- Waddell and ting under his hand. Others. Pleas. 2. The deed of 1822 having never been delivered by the granter, Defenders' either to the grantees, or to any person for their behoof, that deed remained wholly ineffectual, and cannot affect the general conveyance contained in the testatrix's subsequent trust-deed in favour of the defenders. 3. The deed of 1822 being wholly gratuitous, testamentary, or at least in its nature mortis causa, it would have been revocable by the maker, even although it had been delivered; and it was validly and effectually revoked by the after trust-disposition in favour of the defenders. 4. If the deed of 1822 had been of the nature averred by the pursuers, it would have been truly and substantially a donation by Mrs Denholm in favour of her husband, procured at his request, and through his influence, and would therefore have been revocable by the granter. The Lord Ordinary pronounced the following interlocutor ; 'The Lord Ordinary having considered the closed record, and heard counsel for the parties, finds, that if the disposition executed by Mrs Denholm in August 1822 be considered as a deed inter 'vivos, it is not effectual, because it was not executed by the au'thority of her husband, nor was he a party to it; neither is there ⚫ competent evidence offered that he knew or approved of the terms in which it is conceived: Finds, that if it be considered as a tes'tamentary or mortis causa deed, it was revocable sua natura, and ' accordingly was revoked by Mrs Denholm's settlement in 1828: Finds, that no competent evidence is offered that Mr Denholm 'abstained from revoking the marriage settlement in 1816, on the 'faith that Mrs Denholm's disposition in 1822 was to remain ef'fectual, and that no personal exception to Mrs Denholm's power ' of revocation has been raised, on that or any other ground: Finds, 'that, whether the said disposition in 1822 be held as a deed in'ter vivos, or of a testamentary nature, it is not proved to have been 'delivered, in respect that Francis Wilson, the custodier, was Mrs 'Denholm's ordinary agent, and prepared it by her directions; and ' although it was exhibited by him to the persons who met after 'Mr Denholm's funeral, there is no evidence offered that this was 'done by Mrs Denholm's authority, or with her consent: There'fore, assoilzies the defenders from the conclusions of the libel, and decerns: Finds no expenses due to either party.' 22 Nov. 1831. Brownlee and This interlocutor being brought under review by a reclaiming note on the part of the pursuers, Lord Craigie said—I entertain great doubts of the interlocutor of the Lord Ordinary. By the mutual settlement each of the parties was authorised to make any alteration they might think fit. The power is expressly given to ' either' of them. As long, therefore, as Mr Denholm, the husband, was in possession of his faculties, he might have withdrawn his name from the settlement, or he might have conveyed to his relations, or others, his whole effects, heritable and moveable, with the burden of his wife's right of terce in the subjects liable to it, and her share of the goods in communion. It is proved by a deed regularly subscribed by the wife, and the truth of which is not disputed, that the husband, instead of exercising his powers in the fullest extent, proposed that the wife should, in consequence of his desire, give up to some of his nearest relations one-half of the means and estate belonging to him; she having, at the same time, a power, with the approbation of certain friends, to incrcase her income, by the purchase of an annuity out of the funds. This writing was put into the hands of the husband's man of business, and there it remained until the death of the widow. It would seem that she had called for it, for what purpose is not said; but although it had been then delivered, she could not warrantably, or with propriety, have cancelled or revoked it. The deed, in short, as it appears to me, must be considered as the deed of the husband; and being in reference to the previous settlement, and in pursuance of it, and under the direction of a respectable man of business, came in the place of a deed, which the husband had power to make in terms far more unfavourable to the wife; and being truly a deed mortis causa, although to a certain extent obligatory on the parties, might have been executed by the wife, without the husband's concurrence. It would appear from a letter recited in the appendix, that the person thus referred to thought the widow might revoke the deed, although very properly he would not give it up to her; but on this point I cannot agree with him. It has been said, that the wife only meant to comply with a wish of her husband when in a dying state. But where the husband had the power of doing the same thing, or more, his will was necessarily a law to her, and the attempt now made appears to be as improper as can well be imagined. In the case of a mutual settlement like this, either of the parties may revoke, so far as the deed may import a donation between man and wife; but even in such a case, it was decided, and most justly, in the House of Lords, in the case of Cunningham, 20 July 1814, reversing a judgment of the Court of Session, that the revocation must be made in such a way, as that the other party Brownlee and may have an opportunity also of altering the deed. In this case, 22 Nov. 1831. so far from giving such an opportunity, the husband was allowed to die in the belief that what he wished was to be fulfilled. Here Others v. also it may be observed, that if the mutual settlement was to be re- Waddell and voked as a donation, it could only be by the husband, the conditions on the whole being greatly favourable to the wife. Lord Balgray was of a different opinion, and had no difficulty about the case. Whatever obligation, in point of honour, might have been incurred by Mrs Denholm, in virtue of the deed 1822, the legal rights of the parties under it was a very different question; in considering which it was competent only to look to the terms of the deed itself; and the simple question was, whether it was a mortis causa settlement or not? His Lordship was clear that this was the nature of the deed, that it was therefore revocable on the part of the granter, and was accordingly revoked by the subsequent trust-deed in 1828. Lord Gillies concurred, and thought that the interlocutor of the Lord Ordinary was well founded. A deed of this kind executed by a wife, and bearing to be done in compliance with the wishes of her husband, was of a suspicious nature, and his Lordship had great doubts how far a court of law was bound to give effect to it. But it was said, that if this deed had not been executed, the husband would have made one of a similar nature in favour of the persons named in it, in virtue of the reserved powers contained in the previous deed of 1815. But quomodo constat that this was the case? The only evidence in support of this allegation was the narrative contained in the deed; but it was impossible to give effect to such a narrative. A court of law could only judge of and give effect to deeds actually executed, and not to what it might be alleged that parties would have done under certain circumstances. If the argument of the pursuers was successful, it would overturn the whole doctrine of our law. The rule of law was, that the consent of the husband was necessary to deeds executed by his wife; but, according to this doctrine, if a married woman were to execute a deed disposing of her property, to whatever extent, and in any way, and bearing to be done in compliance with the wishes of her husband, it would be binding against herself and all other parties, although in point of fact it may have been executed even without his knowledge. But this was contrary to the principle of our law, and ought not to be sanctioned. The Lord President also concurred. The Court therefore adhered, and found expenses due. Others. Opinion of Judgment. |