Scottish Court of Session Decisions

Malcolm M'Bryd Panton and Margaret Lawrie Latta were married upon 22nd July 1876. Upon 21st February 1876 they executed an antenuptial contract of marriage by which Mr Panton bound and obliged himself to “pay to the said Margaret Lawrie Latta in the event of her surviving him during all the days of her life while his mother is alive a free liferent annuity of £100 sterling, and after the death of his mother a free liferent annuity of £250 sterling, payable the said annuity of £100, and after the event foresaid the said annuity of £250, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payments of the said annuity of £100, and after the event foresaid of the said annuity of £250, at the term of Martinmas or Whitsunday that shall happen next after the death of the said Malcolm M'Bryd Panton for the half-year succeeding, and the next term's payment thereof at the first term of Martinmas or Whitsunday thereafter for the half-year succeeding, and so forth half-yearly and termly during the lifetime of the said Margaret Lawrie Latta, with a fifth part more of each of the said termly payments of liquidate penalty in case of failure, and the interest of each of the said termly payments at the rate foresaid from and after the term of payment thereof during the not-payment. But declaring always that if the said Margaret Lawrie Latta shall enter into a second marriage then and in that event the said annuity of £100 shall be and is hereby restricted to a free liferent annuity of £50, with corresponding interest and penalty payable as aforesaid, and the said annuity of £250 shall be and is hereby restricted to a free liferent annuity of £125 sterling. After marriage they continued to live in the same house with Mrs Panton senior. One child was born of the marriage. Mr Panton died on 23rd June 1880. He left a trust-disposition and settlement dated 14th June 1866, in which, inter alia, he directed his trustees “to hold and apply the whole

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residue and remainder of his means and estate for the use and behoof of his mother in liferent. After her death the estate was to be divided into eight shares and disposed of as he directed in the deed. In a codicil written after his marriage, and dated 29th July 1879, he directed his trustees in the event of his death leaving issue, which event happened, to hold the residue of his estate for behoof of his whole children. After Mr Panton's death his widow and her daughter continued to live with Mrs Panton senior until that lady's death on 16th November 1882, and during this period Mr Panton's trustees paid the whole income of his trust-estate, about £600, to Mrs Panton senior. They made no payment directly to the widow in satisfaction of her annuity, and she made no demand for it.

On 4th December 1882 the late Mr Panton's trustees met, and Mrs Panton was present. The minute of meeting bore that the law-agent explained her provisions under the marriage-contract as including “(3) An annuity of £100 a-year so long as the late Mrs Panton was in life, commencing the first payment at the first term of Whitsunday or Martinmas after Mr Panton's death. This annuity Mrs Panton stated had not been paid directly to her, but as she just lived in family with the late Mrs Panton, out of whose funds and the rents of Mr Panton's property the house expenses were defrayed, she was willing to let the annuity be set off against her maintenance prior to the term of Martinmas last.” The minute was signed by the trustees but not by Mrs Panton.

In 1885 the trustees drew up a statement of annuity due to Mrs Panton under the marriage-contract showing each half-year's annuity with income-tax deducted, from 11th November 1880 to 15th May 1884. Mrs Panton signed this statement under these words, “I acknowledge that my annuity as above detailed has been duly accounted for to me by the trustees of the late Malcolm M'Bryd Panton.” This statement was not holograph of Mrs Panton or tested, and it was not stamped.

On 14th August 1883 Mrs Panton married the Rev. H. P. Cameron, then minister of Milton Parish Church, Glasgow. The marriage proved an unhappy one, and Mrs Cameron on medical advice went to Manitoba in April 1885. She returned to Scotland in 1888, but in July of that year was seized by severe illness from which she did not recover until February 1889. She entered into a contract of voluntary separation from her husband in March 1889.

Upon 23rd May 1890 she brought an action against Robert Henderson and others, the sole surviving and accepting trustees, original and assumed, of her late husband, for payment of £250, being five half-years' annuity alleged to be due to her from 11th November 1880 till 11th November 1882, the time between the death of her husband and the death of his mother. She attributed her delay in bringing the action to her misfortunes and ill-health since 1883.

The trustees founded on the minute of meeting and statement above quoted, and averred that their obligations had been implemented by them, and discharged by the pursuer.

The pursuer averred—“After the death of the said Malcolm M'Bryd Panton, and during the time the pursuer and her mother-in-law lived together, the pursuer repeatedly asked Mrs Panton for payment of her said annuity, but she was never paid same. During this time, also, the pursuer defrayed, out of her own private means, her own and her daughter's personal expenses. The pursuer was ignorant, and continued to be so until shortly before the raising of this action, that she had a claim against the defenders for the instalments of her annuity now sued for, and that the same ought to have been deducted by the defenders from the entire income of the trust-estate before said income was paid over to Mrs Panton. The statement of annuity referred to in the answer is not holograph of the pursuer, nor tested. It was put before her by the law-agent of the defenders a day or two before she sailed for Canada, without explanations of any kind, and she was not aware that it referred in any way to the instalments of annuity now sued for. The pursuer specially denies that she, at the meeting of trustees in question, or at any time, agreed to set off or discharge her said annuity.”

Upon 1st November 1890 the Lord Ordinary allowed a proof before answer.

“ Opinion.—… Mrs Panton senior died on 16th November 1882. The defenders have produced receipts for payment of the annuity of £250 since her death. The series of receipts is not quite unbroken, but there are more than three consecutive receipts. The defenders plead that, in respect of these payments, she ought to be held to have discharged all arrears. She pleads the apocha trium annorum, and it was maintained that the presumption of payment thence arising could only be elided by the writ or oath of the debtor. While I think the defenders are entitled to the benefit of the presumption, I think their plea goes too far.

I consider that the presumption may be redargued by evidence— Cockburn v. Stuart, 1669, M. 11,398; Buccleuch v. M'Leish, 24th June 1845, 7 D. 927; Tait on Evidence, 472; Hunter on Landlord and Tenant, ii., 445. The case of Hunter v. Kinnaird's Trustees, 5th March 1829, 7 S. 548, appears at first sight to favour the defenders' contention, where, in defence to an action for arrears of rent, discharges of rent for five consecutive years were produced, and Lord Corehouse, Ordinary, assoilzied the tenant, in respect the landlord did not offer to prove that the arrears were due by the writ or oath of the tenant. But that case presented this peculiarity, that each receipt bore to be for the balance of the rent, thereby, as observed by Lord Balgray in the Inner House, ‘necessarily implying that the balance had been ascertained, struck, and settled.’ If this opinion be read along with the report in the Faculty Collection, it would rather appear that the

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proof was limited to the writ or oath of the debtor, rather because the receipts by their terms implied a settlement of all balances of rent than because of the force of the presumption arising from three years' consecutive payments.

While I hold that the defenders are entitled to this presumption, I have not thought it necessary to affirm it at present in any finding which might possibly be embarrassing, partly because I am unable to affirm any plea of the defenders on the point.

There are other defences, but it does not appear to me that they can receive effect at this stage.”

The pursuer deponed—“(Q) At that meeting did you state that you were willing to let the annuity—that is the arrears of annuity—be set off against your maintenance with your mother-in-law prior to the term of Martinmas then last?—(A) No, I did not. (Q) Did you ever at any time agree to set off or discharge the past-due terms of annuity?—(A) No, never. At that time I thought that Mrs Panton, my mother-in-law, should pay the annuity, and on many occasions during the time that I lived with her between my first husband's death and her own death I had asked her for payment of it. She always put me off from time to time, saying, ‘I cannot afford it.’ As matter of fact she never paid me. During the time when I was living with my mother-in-law I had received nothing from the marriage-contract trustees or anyone else towards the support of my daughter. My own personal expenses and those of my daughter were defrayed by me out of the rents of certain property which I had through my grand-father.”

Cross—“(Q) Did you not say to them that that being so you were willing to let the annuity be set off against your maintenance prior to the terms of Martinmas 1882?—(A) I never mentioned these words or anything equivalent to them. I never said that I did not claim arrears of annuity. The annuity must have been spoken about then, because the papers were all read, but I don't remember hearing it distinctly brought forward. Mr Panton, my first husband, explained to me that I was to get £100 a-year during his mother's life. I understood that that was to be paid to me by his mother, but she did not pay it. After she was gone I thought that my claim was gone. (Q) While she was living did you understand that she would pay it by giving you and your child board and lodging?—(A) No, I asked her for it over and over again.… That document [the statement of annuities] is signed by me. I don't think the rest of the document is in Mr Cowan's handwriting; it is not so good. I don't know in whose handwriting it is. I have read the words at the foot. The £516 set forth there seems to include the half-year's annuity sued for in this action. (Q) Is it the case that these annuities were duly accounted to you?—(A) It is not. I signed that document without ever reading it. I signed it in Mr Cowan's office one day shortly before I went to Manitoba. I was asked by Mr Cowan to sign it. I had gone there about business in connection with our leaving for Canada. It had reference to money matters… . Mr Cowan did not speak to me about arrears of annuity. I was just about to leave the office when he said, ‘By-the-by, you had better sign this.’ When I asked him what it was, he said, ‘Oh! it is for the satisfaction of the trustees.’ He told me it was about the annuity. I said I had given receipts, and it was not necessary. He said it was of no consequence, but that it was for the satisfaction of the trustees. That was all. (Q) When you said you had given receipts, did Mr Cowan say anything as to what the receipts were for, and what this document was for?—(A) No. There had been nothing said about the annuity before that. Mr Cowan just spoke to me about this paper as I was going out. He seemed to have had the paper ready, and had almost forgotten to ask me to sign it … In referring to the receipts I said to Mr Cowan, ‘I cannot see that there is any necessity for signing this paper, because I have given you receipts for my annuity.’ (Q) How did you come to say that?—(A) Because I did not see the use of signing twice for the same thing. I did not read any part of the document.”

The trustees deponed that they understood she had agreed to give up her claim to the arrears of her annuity as a set-off to the aliment she had obtained in her mother-in-law's house.

The defenders produced separate receipts for payment of the pursuer's annuity since the death of Mr Panton senior.

The Lord Ordinary upon 6th January 1891 pronounced this interlocutor:—“Finds (1) that the pursuer is the widow of Malcolm M'Bryd Panton, who died on 23rd June 1880, leaving a trust-disposition and settlement, and that the defenders are his trustees; (2) that the pursuer was entitled, under her marriage-contract, to an annuity of £100 per annum during the life of her husband's mother, and to an annuity of £250 after her death, subject to restriction in the event of a second marriage; (3) that the said Malcolm M'Bryd Panton directed his trustees to pay the income of his estate to his mother; (4) that the pursuer and her daughter resided in family with Mrs Panton senior until her death on 16th November 1882; (5) that Mr Panton's trustees paid the full income of his estate to his mother during her survivance of him; (6) that the pursuer, while resident with her mother-in-law, did not demand and did not directly receive payment of the said annuity; (7) that at a meeting of Mr Panton's trustees held on 4th December 1882, the pursuer agreed to hold her maintenance by her mother-in-law as an equivalent for her said annuity; (8) that thereafter, and till immediately prior to the raising of this action, Mr Panton's trustees paid to the pursuer the annuity due to her under her husband's marriage-contract, and that she granted receipts therefor: Finds that in these circumstances the pursuer

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must be held to have discharged her claim for her annuity during the period of her residence with her mother-in-law: Therefore assoilzies the defenders from the conclusions of the action, and decerns.

“ Opinion.—After careful consideration I have found myself unable to sustain the pursuer's claim.

She had undoubtedly a good claim against her husband's trustees for her annuity. They could not have resisted her demand for it. But it is to be noticed that the payment of it was not imposed on them as a special trust duty. She did not demand her annuity while her mother-in-law was alive, and it has never been paid to her directly. Further, I think there is nothing in process which can be received as a written discharge of the annuity during the period in question. The document No. 14 of process bears to acknowledge that it has been accounted for; but I have great difficulty in accepting that document as a discharge or receipt or acknowledgment. If it be put forward as a receipt or discharge, it would, I apprehend, require to be stamped. But it is not holograph nor tested, and although the pursuer has admitted her signature, I think her admission must be taken with the qualification she attached to it, namely, that she did not duly understand it. It is, besides, rather fictitious, and does not represent the facts as they occurred. It acknowledges the annuity half-yearly under deduction of income-tax when in fact it never was paid at all. Had Mr Cowan been alive, and had he explained the circumstances, the case might have been different. As matters stand, I do not proceed on the document.

The unfortunate circumstances attending the pursuer's second marriage, the condition of her health, and her absence abroad afford some explanation of her delay in bringing this action, and some excuse for it; and cases might readily be imagined in which the presumption arising from consecutive termly discharges might be more conclusive than in this case.

I have much more difficulty in accepting the pursuer's explanation that she did not fully understand the nature of her right to this annuity. Her husband had told her of it. She knew that her annuity after her mother-in-law's death was payable by her husband's trustees, and it is not easy to see how she took up the idea that during her mother-in-law's life it was payable by her and not by the trustees. Besides, it is not explained why, if she thought so, she made no demand for it against her mother-in-law's trustees.

I consider that the case of the defenders depends on the circumstances set forth in the minute of the trustees of 4th December 1882. The pursuer lived with and was maintained by her mother-in-law. She knew that Mrs Panton senior was receiving the whole income of Mr Panton's estate, and she made no objection. It was very fair and reasonable that she should hold that the trustees had practically paid her annuity when they paid the whole income of the estate to her mother-in-law with whom she and her daughter lived in family. It was practically a payment to her, and I think if it be proved by parole that she assented to that arrangement, that such proof, taken along with the consecutive discharges for subsequent termly payments, will competently and sufficiently instruct a discharge.

The minute of meeting bears that Mr Cowan explained the pursuer's rights under her marriage-contract, and that she stated her willingness to allow her claim for arrears of annuity to stand against her maintenance. The three trustees who sign the minute depone to its substantial accuracy, although naturally they cannot speak to precise words. The evidence of Mr Lyon, who was one of Mrs Panton's trustees, is not it is true so satisfactory. But he is eighty-seven years old, and could not be expected to recollect precisely the details of a meeting in 1882.

I am unable to hold the pursuer's evidence as meeting that of the three trustees. There cannot be any doubt that Mr Cowan went over the provisions in the marriage-contract. It is not a complicated deed, and the provisions in favour of the pursuer are clearly and simply expressed. I am really unable to accept the pursuer's explanation that she did not understand them. She is a lady of intelligence and clear apprehension as to matters of business, and I must think that in this matter her recollection is at fault. It would, considering her misfortunes and her illness, be no wonderful matter if it were, and the fact that she really did forget having received the £100 of aliment should not be left out of account.

It is much to be regretted that Mr Cowan's evidence has been lost. The action no doubt was raised while he was alive, but his evidence would have been available but for the delay in the pursuer's claim. There can be no doubt about his view on the whole matter, for he was the author of the minute, and perhaps it is not going too far to say that Mr Cowan's character and professional standing exclude all doubt as to the minute expressing the facts as he understood them.

On the whole, I think it proved that the whole liferent of Mr Panton's estate was paid to Mrs Panton senior, with the knowledge of the pursuer; that the pursuer knew that she was entitled to £100 a-year out of this liferent; that she received it practically and substantially, although not directly; that she verbally agreed to accept her maintenance in her mother-in-law's house as an equivalent for her annuity; and that she afterwards for a period of eight years received and discharged her annuity; and I am of opinion that these circumstances amount to a discharge of the annuity during the period of her residence with her mother-in-law.

When allowing a proof, I expressed the opinion that the receipt for so many consecutive years of the annuity gave rise to a presumption of discharge or satisfaction. That there is such a presumption is, I think,

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settled by authority, and it appears to me that the true question in this case is, Has that presumption of satisfaction or discharge been displaced? I think not. The pursuer has proved, no doubt, that she did not receive the annuity directly, and I have held that it has not been shown that she gave a written discharge; but the presumption of law cannot possibly be a presumption in favour of a written discharge, but in favour of a verbal or implied discharge. I consider that the weight of the evidence is not against, but is strongly in favour of such a discharge, and that the defenders are therefore entitled to absolvitor.”

The pursuer reclaimed, and argued—She was entitled to these arrears of her annuity as they had been provided for her use by the marriage-contract, and had not been paid to her. The claim was made as a debt against the testamentary trustees as the trust-estate was the only fund left by Mr Panton to pay his debts. The only defence made by the trustees was that the pursuer had agreed to hold that payment to her mother-in-law was to be taken as payment to herself, but they had no writing to that effect as the minute of the meeting on 4th December was not signed by the pursuer. The pursuer denied that she ever agreed to homologate the trustees' actings, or give up her claim to the arrears, and the parole evidence did not bear out the defenders' contention. On the face of the deeds it appeared that everything was left to Mrs Panton senior, and therefore the pursuer thought she was to get the annuity from her, and repeatedly asked her for it. The alleged receipt signed by her was not stamped, and therefore could not be looked at by the Court. No doubt the pursuer had signed receipts for her annuity after this meeting for several years without making any protest, but the unfortunate circumstances in which she was placed by her second marriage, and her ignorance of her rights, were sufficient to explain that matter.

The defenders argued — Discharge of a debt was to be presumed, among other things from the actings of the parties. Here the minute of the meeting on 4th December 1882, and the acknowledgment given by the pursuer in April 1885, were enough to show that the payments made to the mother-in-law must be taken as homologated by her— Irvine v. Lang, March 6, 1840, 2 D. 804. But it was competent to prove this by parole evidence— Henry v. Miller, March 18, 1884, 11 R. 713. The evidence was sufficient to establish that the pursuer agreed to give up her claim for arrears of annuity. Payment could be presumed from circumstances— Russell's Trustees v. Russell, December 11, 1885, 13 R. 331. The acknowledgment of April 1885 was good evidence although not stamped— Steven v. Pirie, 10 S. 279; Arnot v. Countess of Orkney, March 6, 1611, M. 16,960; Rule v. Aiton, June 11, 1628, M. 16,961. It was not a receipt but a fitted account— Fell v. Rattray, January 28, 1769, 41 S.J. 236. A receipt for a legacy neither holograph nor tested after proof that the signature was genuine had been held competent evidence of payment— M'Laren v. Howie, November 6, 1869, 8 Macph. 106. The signature to this acknowledgment was admitted to be that of the pursuer, and it must be taken as good evidence of payment to her. This claim was not made till eight years after the proceedings upon which the defenders founded had taken place, and the person who could best have explained the whole matter, Mr Cowan, was dead, so that perhaps the evidence was not so clear as could be desired; but ever since that time the pursuer had received payment of her annuity half-yearly, and given receipts for it, without making a protest or claiming the arrears she now did. That was sufficient to bar her from recovering— Hunter v. Lord Kinnaird's Trustees, March 5, 1829, 7 S. 548; Duke of Buccleuch v. M'Turk, June 25, 1845, 7 D. 927.

At advising—