Petition M'Kenzie, 17 Feb 1767

February 17 1767. Unto the Right Honourable the Lords o f Council and Session, T H E P E T I T I O N O F G eorge M 'Kenzie, Esq; late Captain in the Regi­ ment o f Foot, commanded by the Honourable General Harry Pultney, Humbly Sheweth, THAT the petitioner’s sister Margaret M'Kenzie was married in the year 17 2 1, to the now deceased Andrew Alves writer to the signet. Of this marriage, besides William Alves the eldest son, there were several other children. The said Andrew Alves being by no means in easy or opulent circumstances the petitioner did on many occasions asi st him and his family, and the apprentice- ship of the eldest son William, who was bred a surgeon, being ended in the year 1744, the petitioner, who was then in Flanders, had him brought over to the army at considerable charge, and procured him the rank and pay of a surgeon’s mate in the hospital. This William, afterwards Doctor Alves, continued with the army till the peace was concluded by the trea­ ty ty of Aix la Chapelle, when he went to Paris for the purpose of improvement, and upon this occasion, the- petitioner advanced him a considerable sum. The doctor remained in Paris till the end of the 1749, and the petitioner, during that space, had further opportunities of showing his regard for, and assi sting his nephew. After the doctor returned to Scotland, he was some- time at a loss in what way to prosecute his employment. But, in the year 17 5 1, an opportunity offered that promised success. An East-India company was then forming at Embden, and the doctor proposing to go abroad in the service of that company, went over to Holland sufficiently recommended. But after some stay there, the Embden company scheme proving a- bortive, he went over to London, where, another op­ portunity having offered, he set s ail for East-India in I752. T he petitioner chiefly assisted Doctor Alves in these equipments, and tho’ he might not possibly know the full extent of the petitioner’s benefactions on these last occasions, he knew enough to lay him under the strong- est obligations of gratitude, and he expressed a proper sense of them in a letter he wrote the petitioner imme­ diately before his departure. In 17 5 3, the petitioner went to Gibraltar with the regiment, but till the day of his nephew’s death, which happened only in the year 1762, never received ano­ ther letter from him. What the occasion of this silence may have been, Mrs Cockburn of Clerkington, the doc­ tor’s aunt by the father’s side, who was his constant cor- respondent, probably knows best. It is sufficient to ob- serve at present, that the doctor acquired a considerable fortune, fortune, to the amount of L. 4 or 5000 Sterling, and that upon the 14th April 1762 he executed a will at Calcutta, of the following tenor: “ I William Alves Docto r of Medicine, do hereby, in case of my death, Ordain this to serve as my last will, whereby I im- power my aunt Mrs Henrietta Cockburn, to be my sole heir, and to take possession of all the estate I shall be possest of at my death, and authorize her to appropri­ ate to herself, both what fortune I have at Bengal in the hands of Mr Peter Downes my lawful attorney and executor in case of my death in the East-Indies, or in the voyage home; as well as that which is in Europe, become due to me by my father’s death, and hereby desire my said aunt to dispose of the same as she may think agreeable to herself, as I know she will do it in a righteous manner, by assisting her and my most indi­ gent relations; but in case my aunt Henrietta Cock- burn should not exist when I am dead, or when the news of my death reaches Edinburgh, then my bro­ ther Basil Alves, Lieutenant in Lord Robert Man­ ners’s regiment, is to become successor and heir to me; but he has to pay annually to my uncle John Alves L. 30 Sterling money while he lives; also the same sum to my aunt Mrs Ann Cumming, and L. 25 to my aunt Mrs Ann M'Kenzie, both to be paid yearly, and with the utmost punctuality; he must al­ so take care of a natural daughter of my and his fa­ ther, (begot on the body of Agnes Matthie,) in this manner she shall be brought up in some charity, and when discharged the same, she is to have L. 50 Ster­ ling to enable her to follow some business, or to get herself prudently married to some worthy and indu- strious husband, she in the mean time to be provided decently & decently till put in the charity: I also desire, that if my uncle Captain George M‘Kenzie is alive, that he may be paid L. 200, if he will accept of the same, as I was much obliged to him formerly, tho’ now forgot by him without a good cause. I hope and with this my last will may please my God, Maker, Comforter, and Supporter, &c.” The petitioner was not a little surprized with this will when it was first read over to him. The unbound­ ed confidence placed by the testator in his aunt, and the preference given her to the doctor's brother and sister appeared very extraordinary; nor could he less wonder at the terms made use of with regard to him- self, from which it would appear, the doctor had been made to believe that the petitioner’s attention and re­ gard to him had been totally withdrawn. Mrs Cock- burn perhaps may be able to account for these things, tho’ the petitioner cannot do it; but as he resolved to accept of the legacy left to him by his nephew, so Mrs Cockburn, to whom the succession opened by this will, seemed inclined for some time to make payment of it; she afterwards thought proper however to alter her re- solution, which forced the petitioner to commence an action against her. This action having come in course before the Lord Auchinleck Ordinary, it was pleaded in defence for Mrs Cockburn, that this legacy was only to take place in the event of her non-existence at the time of the Doctor’s death, or when the news of that event should reach Edinburgh: In which case his brother Basil was appointed to be his heir, with certain burdens; none of which were imposed upon her; and upon the 20th of January last, the Lord Ordinary was pleased to pro­ nounce nounce the following interlocutor: “ The Lord Ordi­ nary having considered the debate, and the deceased Dr Alves’s last will, with the mutual memorials, Find, That, according to Dr Alves’s intendment ex- pressed in his last will, the defender Mrs Henrietta Alves his aunt, is intitled to take his whole estate without being subjected to the payment of any lega­ cy whatever; and finds the legacies specified in the will, were not intended to affect this defender, who appears to have stood high in the doctor, her ne­ phew's, favour; and to whom, therefore, he left his whole estate, subject in g her to no burden, except what she herself thought proper to bestow on his poor relations, but were only to affect Basil in the event of his succeeding; whom, as less favoured, he bound expressly to pay certain legacies to his re­ lations therein mentioned, and particularly a sum to the pursuer, who, by the testament, is not put in any different state from the other legators; and the circumstance that de fa cto the other legators were poor, and he not so, creates no difference in his fa­ vour; on the contrary, he appears not at all to have been intended to have any thing, unless the estate passed from the person he had the chief regard for, to another, and therefore assoilzies, and de- cerns. / And to this interlocutor, his Lordship was pleased to adhere upon the 3d current. These interlocutors the petitioner begs leave to sub- mit to your Lordships review. As the Lord Ordinary seems chiefly to have rested his judgment upon the high degree of confidence that Dr Alves had reposed in his aunt’s discretion, and upon a f I a supposed intention to give her his whole estate, with­ out subjecting her to the payment of any legacy what- ever; it will not perhaps be improper in the entrance to consider, from what cause so strange an affection could arise, as to induce him to prefer her to his bro­ ther and sister who had never offended him; and, for any thing he knew, stood more in need of his boun­ ty. In the proceedings before the Lord Ordinary, Mrs Cockburn talked much of the friendship which subsist- ed betwixt her and her husband, and the doctor, and the kindness they had always shewn toward him. Cir- cumstances of that kind are surely too slight to induce any person that is free of caprice, to prefer an aunt to so near relations. They might no doubt move him to bestow some share of his effects upon her, as a mark of his gratitude and esteem, but it will hardly be believed that they could induce him to give her all. At the same time it may be observed, that any assistance or friend­ ship shown to the doctor by this lady or her husband, could be of very little service to him, as it is well known their circumstances were far from being afflu­ ent. Dr Alves was well apprised of the straits of his fa­ ther’s family before he left Britain; he shewed his sense of the scantiness of their funds, by having been in use, during the last years of his father’s life, to remit mo­ ney for his support; and it is undoubtedly certain, that he was well assured, from states sent him after his fa­ ther’s death, there was no prospect, that the funds he left would equal the debts he owed. The petitioner would be extremely sorry to indulge himself in rash suspicions, to the prejudice of any per­ son son; but when he considers these last circumstances, and sees that the doctor by his will, not only leaves his own estate to bis aunt, but likewise, “ That which is in Europe become due to him by his father’s death;" and when he reflects upon the doctor’s neglect to hold any correspondence with the person from whom he received most substantial marks of friendship before he went to the East Indies, and, upon that part of the will where the doctor supposes he had forfeited the peti­ tioner’s esteem, or that the petitioner had forgot him, strong suspicions must arise, that ways and means have been used to alienate the doctor’s affections from those who would appear best intitled to his favour. Mrs Cockburn found herself much pinched to account for the doctor’s preferring her to his own brother, and therefore alledged that this brother was a boy when the doctor went abroad. It is true indeed, that he was then only a lad of 1 6 years of age; but this, instead of proving the rationality of the doctor’s settlement, must make the preference given to the aunt still more extraordinary, as it cannot be supposed, that a boy of that age could give any ju st cause of offence to an el­ der brother; at any rate, at the date of the will, the doctor knew his brother was arrived at man’s estate, and held the rank of an officer in the army, in which stile he is pointed out in the substitution, failing Mrs Cockburn. The defender was likewise pleased in her memorial, to depretiate the services done by the petitioner to his nephew Dr Alves; but although he never thought it worth while to take any obligation for the money ad­ vanced on his nephew’s account, of which he, at that time, had no prospect of a return, the defender can- not not posib ly be ignorant of the repeated act s of friend- ship which he showed to him; and, were it necessary, there are gentlemen in this country, by whom it could be instructed, that the docto r lay under the highest obligations to his uncle. Indeed, the fact is acknow­ ledged in the will itself, upon which the present que- stion turns, although, at the time when this will was formed, the docto r was made to believe that he had then forfeited his uncle’s esteem. This leads the petitioner more particularly to con- sider, whether there is any just ground to presume that Dr Alves meant to bequeath the sum in question, only in the event of his brother’s succeeding to his effect s. It must be admitted, that even where the mode of expression is uncertain and ambiguous, the governing rule in the interpretation of last wills, is, the voluntas testatoris, and, as it is acknowledged, that Dr Alves meant, in one event, to give a legacy of L. 200 to the petitioner, it is at least extremely probable, that he meant to give him the same legacy in every event: And before the pre- sumption arising from a probability of this kind can be defeated, it must be incumbent upon the defender, to prove from the motives by which the mind of the tes- tator mull be supposed to have been swayed, that his will to bequeath, was confined only to one of the two events which he had in view, with regard to his suc- cession. This, however, will be a most difficult task for the defender. It is easy to conceive, that a person who intends to leave a legacy, from no other motive than a desire to confer a mark of his favour upon the legatee, may choose to leave it only conditionally, in case his succes- sion shall not descend to the person whom he most strongly strongly wishes to succeed; and if the defender had expressed no cause for bequeathing the sum in question to the petitioner, the defender might perhaps, upon this matter of intention, have argued, with some de­ gree of plausibility, that the defender’s expressed reso- lution of burdening his brother Basi l with the payment of this sum, in the event of his succeeding to his estate, would by no means infer a similar resolution to lay the same burden upon the defender, whom he chose to prefer even to his brother. But the case here is very different: For, as the motive that induced the defender to bequeath L. 200 to the petitioner, was founded up­ on a principle of gratitude, and as the legacy falls, in some measure, to be considered as a remuneration for former good deeds, it is impossible to figure a reason for his making a distinction betwixt his aunt’s or his brother’s getting possession of his funds, or for his in­ tending to relieve the one of a burden of this kind, which he clearly meant to impose upon the other. I f indeed there was room for distinction in a case of this kind, it is probable, that his intention would have been quite the reverse of what the defender endea­ vours to ascribe to him. T here was surely much less reason to burden the brother, than the aunt, with this return of gratitude. The brother stood in the same degree of relation to the legatee with the testator, and might be supposed equally an object of his care and attention; but, with regard to the aunt, the testator not only knew that she was noway related to his un­ cle, but likeways knew that his uncle had no esteem for her; And it is imposible to suppose, that any man in his senses, who was leaving a considerable fortune to so remote a relation, and declared in his will that he he was desirous to repay a debt which he acknowled­ ged he owed to the former friendship of his uncle, could ever think of burdening the substitute, without burdening the person first passed to his succession, or so much as using words to indicate his request that this first person or institute should execute, in any way, his intention. The defence, principally insisted on by Mrs Cock- burn, was, that the first part of the will is an absolute and unconditioned gift to her of the doctor’s whole fortune; and that it has no connection with, or de- pendence upon, any other part of the deed, which, in the event that has happened of her surviving the news of the testator’s death, must: be held pro non scripto, as if it had never existed. The petitioner must however confess, that this argument appears to him altogether inconclusive. The deed must be taken as it now stands; and surely the first part can be no broader or stronger, than if the doctor had used the common settling words in every disposition that is attended with a substitution. The import of the first part of such a deed gives the disponee a full right to the whole subject in certain e- vents: The substitution gives an equal right to the person next called; and the conditions, or burdens, naturally affect the one or the other, according as the meaning of the disponee can be gathered. Let it be supposed, that no mention whatever had been made by the doctor of his brother Basil, and that, immediately after that clause, in which he desires his aunt to dispose of his effects in the manner most agree­ able to herself, and expresses his belief that she would do it in a righteous manner, by assisting their most in­ digent relations, he had immediately inserted the clause upon upon which the present question turns; it surely could not have been maintained, that because, by the first part of the deed, the disposal of his whole effects was committed to her discretion, the particular legacy gi­ ven to the petitioner was to be held pro non scripto, as inconsistent therewith: And i f that be so, it can make no variation, that, prior to the mentioning the legacy intended for the petitioner, a substitution w;as inserted in favour of Basil Alves, unless it can be shown, that it was the defender’s intention to bestow this legacy upon the petitioner, only in the event of the testator’s surviving his aunt, or of his succession's opening to Basil, whom he had substituted in her place. But it has already been shown, that the inductive motives of this legacy are perfectly adverse to the supposal of any such intention. And the petitioner, in confirmation of his plea, will now beg leave to make another observa- tion or two, upon the particular terms in which the clause, bequeathing this sum of L. 200 to him, is ex- pressed. The docto r, in that part of the deed, where he sup- poses that his aunt was to succeed him, assigns a rea- son for imposin g no particular burdens upon her, which was indeed extremely confidential, viz. “ That he knew she would dispose of his effects in a righte­ ous manner, by assisting her and his most indigent relations.” But as he s eems not to have had the same confidence in his brother, who was a young lad when he left this country, and with whom he had kept up no correspondence, those persons, upon whom he had it in view to bestow his charity, are particularly mentioned; and the extent of his bounty is precisely ascertained, by settling annuities upon one and all of them. them. It was extremely proper that he should do so, as each of these persons fell precisely under the predi­ cament of his most indigent relations, whom he had in view to assist. But it can by no means be said, that the petitioner was in that situation. The doctor knew that he was in good circumstances, and did not consi- der him as one to whom a charitable principle called upon him to give any part of his fortune: And thence arose the distinguishing motive of this bequeast, by re­ ferring the obligations he had formerly received from him. Supposing therefore, that the other persons spe- cially named, could have no ground for a civil action against the defender, for payment of the annuities set­ tled upon them, whatever natural obligation she may be under to do so, the petitioner’s case will be found to stand upon very different ground. It is likewise remarkable, that in settling the annui­ ties upon the other persons mentioned in this will, the doctor uses words that can apply only to his brother Basi l, whom he particularly points out, as the person who is to pay these annuities; but when he comes to mention the petitioner’s legacy, in the latter end of the deed, he expresses himself in very different terms. He does not say, “ I also desire, that my brother shall pay my uncle such a sum,” but he uses the general ex- pression, “ I desire that there may be paid.” This was surely the proper method of expressing a general bur- den. It applys to no particular person. It must there­ fore be considered as a burden, to which his fortune was w / to be subjected, into whose hands soever it might come. And if this legacy was to receive a different interpreta­ tion, it would, in the petitioner’s humble apprehension, not only render the deed inconsi stent, but altogether unintelligible. unintelligible. The reason of the donation, which was remuneratory of former favours, must apply at least e- qually to the aunt as.to the brother. And it is impos- sible to figure a consideration. connected with the view which the testator seems to have had before him in gi­ ving this legacy, that could have induced him to have burdened his brother with it, and not to have imposed it as a burden upon his aunt. The defender was pleased, in the proceedings before the Lord Ordinary, to complain, that the first demand made for payment of the legacy in question, was the execution of a summons against her. And, as the same thing may perhaps be again repeated with a view to create an unfavourable impression against the petitio­ ner, he will be forgiven for stating how the fact really stands. The petitioner knew nothing of the particulars of his nephew’s will, and was entirely ignorant of the le­ gacy given to himself, until the defender’s agent came to his house, and read over the paragraph, and desired to know if he would accept. He immediately declared he would accept of it. And having, on many occasions thereafter, enquired at this agent, when the money would be paid, he received for answer that she had not recovered it: At last, upon being informed that the money was recovered, he sent a particular message to the defender’s agent, desiring him to acquaint his client, that he expected payment of the L. 200 in terms of the will. The agent communicated this request, and after­ wards reported her answer to be, that when the petiti­ oner chose to write to her upon that subject, she would give her own answer. The meaning of this was obvi­ ous: ous: As she knew well that the petitioner would not enter into any correspondence with her, her answer was therefore most justly considered as an absolute re- fusal of payment. And is the petitioner thought him- self well entitled to his legacy, he resolved to sue for it. Upon the whole, the petitioner is hopeful, that both from the presumed will of the testator, and the terms of the bequest, which are precisely general, without a- ny condition, but the survivance and acceptance of the legatee, your Lordships will think him ju st ly intitled to his legacy, and will gi v e j u d g m e n t a c c o r d i n g l y. May it therefore please your Lordships, to alter the Lord Ordinary’s interlocus, and to decern the defender to make payment of the legacy in question, in terms of the libe. According to justice, &c. A L E X. W I G H T.