Donald v. Murdoch — Memorial, 1 Aug 1771

Untitled [Lord C o a l s ton Reporter.] August C o CaaCo M E M O R I A L F O R Susan Murdoch, daughter of the deceased John Mur- doch of Craigton, Charger, l s l t n � Robert Donald, James Hepburn, Walter Stirling and Company, merchants in Glasgow, Suspenders. * T H E late John Murdoch of Craigton, by an heritable bond of provision of this date, to the memorialist, his youngest daughter, “ obliged himself to pay the sum of 3000 merks of portion; and that at her marriage, or upon the first term after my decease, which of them shall first happen, with the lawful interest after the said term.” The said John Murdoch, upon the narrative, that the memo- rialist was unmarried, “ and that my other daughters having re- ceived, at their marriage, wedding-cloaths, and other favours therefore, of this date, he " granted a personal bond, for 600 merks, to the memorialist, her heirs, executors, or assignees, in lieu of her wedding-cloaths, and other favours, that the rest of my other daughters have received from me at their marriages, and other times.” By a third deed, of this date, he sett led certain heritable subjects on William Sterling surgeon in Glasgow, his son-in-law, and James Rowan, his grandchild, with certain burdens and provisions; and, inter alia, “ with the just s ixth part of the fee price of the said lands, in favour of Susan Murdoch, my daughter, (the memo- rialist) in liferent, during all the days and years of her lifetime, and f ailing ot her by decease without marriage, the fee to the heirs “ therein therein mentioned; and which provision, in favour of my said daughter, is over and beside the sum contained in the said heri- table bond.” Susan being thus provided by her father, lived and supported herself on her patrimony. But it being more convenient to have her whole money lent out in one sum, and to one debtor, she col- lected all together, and, of this date, lent out, and received a per- sonal bond from Robert Donald, James Hepburn, and Walter Stir- ling, merchants in Glasgow, for the use of our company-concern, the sum of L. 300 Sterling, with annualrent and penalty. The memorialist, being unable to subscribe receipts or vouchers, by reason of an infirmity in her right arm, of this date, granted a factory to Elisabeth Murdoch, her sister, and failing of her by decease, to Walter Stirling merchant in Glasgow, my nephew, to be factors and managers for me; and in respect of said infirmi- ty in my right arm, therefore I expressly provide and declare, That my said factors, or any one of them, their own account shall be a sufficient voucher for instructing the payment to be made by them, or any one of them, to me, or the money to be applied by them on my account, or for my behoof; and that without the necessity of any further or other proof.” This fac- tory is signed by two notaries and four witnesses. Not many days after executing this factory, the memorialist was prevailed upon to make a settlement of all her affairs. And ac- cordingly, of this date, an assignation and disposition to all her goods and effects, particularly of the bond above mentioned, was executed by two notaries and four witnesses, “ in favour of Elisa- beth Murdoch, my si ster; and failing of her by decease, to and in favour of Walter Stirling merchant in Glasgow, her son and my nephew, his heirs, executors, or successors whatsoever, with the burden of lawful debts, and funeral expences,” and contain- ing a power of revocation or alteration. It is further provided and declared, “ That in case the said Elisabeth Murdoch my si ster shall decease before me, and that the said Walter Stirling my nephew shall thereby succeed to my moveable subject hereby conveyed in virtue of these pre- sents, then the said Walter Stirling, by acceptation hereof, shall be bound and obliged to pay the legacies therein mentioned.” There is this further clause: In the event that the debts and fu- neral expences shall occasion a shortcoming of the funds, then it is is appointed, that there shall he a proportional defalcation out of the legacies bequeathed; " only in this last-mentioned event I ex- pressly provide, T hat the said Walter Stirling, my nephew, shall retain, out of my subjects hereby conveyed, preferable to all my foresaid other legatees, the sum of L. 20 Sterling, in consi- deration that the said Elisabeth Murdoch his mother hath already expended an equal sum upon my account." The substitution in favour of Walter Stirling took place by the predecease of Elisabeth Murdoch. The memorialist then resolved to make an alteration in her settlement. From affection to Elisa- beth, all was left to her, without any burden; and, by the above settlement, her son would have drawn a great share and proportion of the memorialist's fortune. But as she had soon reason to find, that Walter deserved no particular favour at her hand, nor to be preferred to her other nephews by her si sters, who stood in the same degree of relation with himself; and above all, being provo- ked with the above provision of L. 20 of legacy to Walter, as a præ- cipuum ingrossed without orders from her, and upon a false narra- tive in point of fact, and which she had heard nothing of till the death of her si ster, she therefore resolved to make an alteration in the settlement of her affairs. This alteration was done with the greatest gentleness and favour even to Walter Stirling. For having a nephew by each of her three eldest si sters, she executed, of this date, a disposition in fa- vour of them, viz. Janies Rowan, Robert Urie, and said Walter Stirling, putting them all on an equal foot; and it concludes with this clause: “ And I hereby expressly revoke all my former settlements, in fo far as inconsi stent with, and prejudicial here- to; and particularly, I revoke my settlement of the 29th of Au- gust 1769, and a clause and provision therein of L. 20 Ster- ling of legacy, to be retained in the said Walter Stirling’s hands, preferable to all my other legacies therein mentioned, said to be in consideration that Elisabeth Murdoch his mother had expended an equivalent sum upon my account; but which clause and provision was insert by mistake, contrary to my true meaning and intendment: And in regard the said Elisabeth Murdoch never expended that sum, nor any sum on my account, for which the was not reimbursed by me, and that I owe her no debt or sum for any cause whatever; therefore I do hereby expressly revoke that legacy and provision accordingly." This 4 This just and reasonable settlement, and proper revocation, gave great offence to the nephew Walter Stirling. And thereupon dif- ferences having arose, the memorialist was obliged to registra te the above copartnery bond, and to give the company a charge of horn- ing. W alter Stirling being as much out of humour as his aunt, presented a bill of suspension, on the following grounds. 1mo, It was alledged, That the charger had promised to forbear, and not demand, payment of the bond till Martinmas next; which the suspenders offered to prove by her oath. This was answered by a denial of the fact, and an offer to de- pone negative. 2do, It was averred, That the charger was under the influence of her maid-servant; who, without orders from her mistress, had di- rected the charge of horning to be given; and that if the money was paid, it would be squandered away. The answer to this, too, was a denial of every averment. This supposed maid had left the memorialist ’s service; that orders were given for the charge by the memorialist herself; that the L. 300 of principal was directly to be lent out to other as good hands, who would pay the interest regularly. 3tio, It was alledged, That said Walter was creditor to the char- ger by sundry accounts; upon which compensation, or retention, was craved. This was likewise denied, that the charger owed a brass farthing to Walter; at least, if anything was due upon account, the same should be allowed upon his deponing to the verity thereof. These reasons of suspension appearing frivolous, recourse was had to a very extraordinary averment, that the charger was but a kind of half-idiot, and by infirmity and old age was now altogether incapable to manage her affairs; and letters and declarations were produced to astruct this fact. Lord Coalston, Ordinary on the bills, “ appoints the complain- ers to give in a condescendence of what they alledge, and offer to prove, with respect to the state and condition of mind of the charger, and how fa r she is, or is not, capable to manage her affairs.” The bill being passed, the Lord Ordinary ordered memorials; and on advising thereof, your Lordships, of this date, “ remitted the cause back to the Ordinary, to inquire into the facts, hear par- ties further ^ and do as he shall see cause.” At At an after calling, the Ordinary, of consent of parties procurators, remitted “ to the present provost of G lasgow, and the sheriff-depute of Lanerk, to inquire into the charger’s dare of mind; and to report, whether it is such, as that it is proper for her to manage her own affairs; and particularly, whether she is in such a situation, as to be intrusted with the sums charged fo r. A report having accordingly been made, and parties heard there- on, the Ordinary ordered memorials; and this is humbly offered for Susan Murdoch. The report is of the following tenor. “ We, Colin Dunlop of Carmyle, Esq; present Lord Provost of Glasgow, and Mr Wil- liam Cross advocate, sheriff-depute of Lanerkshire, visited Susan Murdoch, mentioned in the within act and commission, whom we found to be an old frail woman, and s omething deasish; and after conversing with her about half an hour, we are of opinion, that s he is by no means an idiot, but a woman of a very low form of un- derstanding. She complained much to us of her nephew the sus- pender; and affirmed he had wronged her in about L. 150 Ster- ling of her father’s effects, which ought to have fallen to her share, over and above what she got; as also, that her nephew would pay her no interest on her bond; and that she must ab- solutely have starved for want, had not her niece Mrs Pettegrew, with whom she was lodged when we saw her, taken her into her care: but how far these assertions are true or false, we cannot say. She added, that her reason for uplifting her money was, that she would not have it in any body's hands with whom her nephew had any thing to say; and in general, she seemed to have got very bad impressions of aversion to her nephew. We likewise called for four women, one of whom had been her landlady, and another her servant or keeper, and the other two had lived in her neighbourhood, and had been frequently with her; and after exa- mining them, we found no occasion to alter our opinion, with respect to the weakness of her understanding; especially as they all agreed, that her memory had failed her considerably of late; and we found too from their answers, that the getting possession of her, seemed to have been matter of contest amongst those who were then about her, which served further to confirm us in our opinion of her understanding already given. We beg leave to observe further, that as the bond in question is the only fund of subsi stence she has, it w ill take no great reach of understanding to “ uplift uplift and discharge the interes t; hut how far s he may be liable to s inistrous impressions, i f the principal sum be uplifted, either as to a prudent disposal of it, or by way of testament, we cannot take upon us to say, further than by expressing our s uspicions as above. We are, however, of opinion, that the money is very well secured where it is; but that considering Miss Murdoch’s age and infirmities, and the attendance on her that seems necessary, the supporting her in a proper way, may take an additional sum, over and a- bove the interest of the bond, to the extent of, as we judge from what we saw, from L. 10 to L. 20 Sterling yearly. All which being the report and answer to what we apprehend to be the in- tention of the order, is humbly submitted to the court. In testi- mony whereof, this report, wrote on this and the preceding page, by George Thomson writer in G lasgow, clerk chosen by us to the said commission, are signed by us and our said clerk, place and date foresaid. (Signed) Colin Dunlop. William Crosse. George Thomson.” This is the report upon which, with the circumstances set forth in the former memorial, the Lords are now to give judgement. It will, therefore, be proper to mention a few particulars contained in Walter Stirling’s memorial. The reporters say, We are of opinion, that Susan Murdoch is by no means an idiot. They seem to have been led to this expression, by the manner in which Walter Stirling had treated his aunt in his memorial, where he calls her upon many occasions, but a kind of half idiot. It is there fet forth, p. 7. “ As evidence of the charger’s weak and imbecile condition, the suspenders do condescend and say, That all her relations, so far from approvi ng of the present charge, are in the firm persuasion, that her uplifting the sum charged for, would prove ruinous to the charger, and would ex- pose her to have the only fund which she has for her subsistence embezzled and squandered away. As evidence that this is the opinion of the charger’s relations, there is a letter produced from Janet Murdoch, the charger’s only filter now in life, to Mr Stir- ling; which as it appears extremely material, and affords direct evidence of her unfortunate si tuation, the suspenders shall give in Janet Murdoch’s own words.” “ Govan, 2 7th August 1770. Dear Sir, I am sorry to hear my si ster Susan is endeavouring to raise the L. 300 you and company “ owe owe her: As, poor woman, when at her best s he was but a kind of half idiot, now through age and infirmities she is altogether incapa- ble; and consequently it is not her, but her s ervant usin g her name to get it into her hands: therefore I must beg of you, in the most earnest manner, you'll not part with the money; for I am per- suaded it will not be long out of your hands till she be thrown either as a burden upon the public, or me and the rest of her friends. Your mother, during her life, managed her subjects so carefully, as from L. 263, (my father Craigton at his death left my si ster Susan), to increase it to L. 300, besides maintaining her decently. That I, who am now her only si ster alive, was quite easy; and sin ce your mother's death, my lately deceased son, Heathreehall, told me he had looked into how you had mana- ged his aunt Susan's affairs, and was extremely well pleased, e- very thing being clear and distinct. Therefore I hope you will still continue to manage as you have done, which will greatly oblige, dear Sir, your affectionate aunt, and most humble ser- vant, [signed] Janet Murdoch." “ This letter affords direct evidence of the charger's situation, and the light in which this charge is considered by her friends.” These were the expressions, and this the language of Mr Stir- ling the nephew in his former memorial; and it is believed that the supposed evidence of a si ster had a very great weight with the court. It therefore appeared to be necessary to inquire what could have moved Janet Murdoch to have wrote or subscribed a letter so in- consi stent with the real opinion she had, and always expressed, of her si ster Susan. This inquiry turned out very little to the credit of the suspend- ers. For it now appears, and evidence thereof is herewith produ- ced, that said Janet Murdoch cannot write her name. In the next place, that s he neither saw, nor heard, that letter till the 25th of June last, when it was read to her from the suspender’s memo- rial. These facts are instru cted by the instrument of a notary, pro- duced, which begins in the following manner. “ Copy of a letter pro- duced with a memorial for Robert Donald, Walter Stirling and Company merchants in Glasgow, suspenders, against Susanna Murdoch, daughter of John Murdoch of Craigton, charger; which memorial bears date the 4th day of March last; and the “ letter letter foresaid is therein said to be directed to the said Walter Stirling, by Janet Murdoch, relict of the deceased James Rowan of Heddryhall, the only si ster now on life to the said Susanna Murdoch, and which letter is of the date and tenor following, as contained in said memorial.” Then follows the letter, and the instrument concludes with these words. “ I Janet Murdoch, relief of James Rowan elder of Heddryhall, the only now survi- ving si ster of Susanna Murdoch, daughter-l awful of the now de- ceased John Murdoch of Craigton, do hereby notify, and make known to all concerned, That I never wrote, nor caus ed write, the letter above copied, nor did I ever s ee it, neither did ever hear any mention made of it, until within these two or three days last I heard it read from the copy of the foresaid memorial. In wit- ness whereof these presents, wrote by John Syme writer in Glas- gow, are subscribed at Green in Shettleston, the 25th day of June 1771 years, before these witnesses, John Lightbody nail- manufacturer in Calton of Glasgow, and James Reston of Bod- hill; the place and date of subscriptions, and the witnesses names and designations thereto, being insert and filled up by James Towart writer in Glasgow. By virtue of a special mandate from the above designed Janet Murdoch, who declared s he could not write, and in testimony of her said mandate she touched my pen, I James Towart, notary- public required to the premisses, subscribe for her. [Signed] James Towart N. P. James R ef on witnes s. John Lightbody witness.” The truth of the matter is, That Walter Stirling wrote the above let- let with his own hand, and delivered the same to Dorothea Rowan, g rand-daughter of Janet Murdoch; and, without showing, or reading it, Dorothea subscribed her grandmothers name. And from ocular inspection, if the Lords will take the trouble of look- ing at it, it is evident, that it is not the vacillant hand of a very ancient dowager, who indeed cannot write at all, but the un- formed hand of a beginner at writing, who could not even spell the sirname Murdoch. When a creditor falls upon such improper and unjustifiable steps, to deceive, by the appearance of evidence, in order to shun the payment of a ju st debt, it ought to give the most unfavourable impression against him, and create the juste st jealousy of the truth of any other account which he shall make. The suspenders likewise resorted to another letter from Andrew Robertson Robertson, and stress was laid upon it in their former memorial but since the case has been understood, and the memorials on both sides read at Glasgow, he has given the true account of that mat- ter, and that he was induced to s ign the said letter, at the arnest s olicitation and importunity of said Walter Stirling, and that it is im- practicable for him to recollect the contents of it. But it is unnecessary to produce private letters upon inch points. The evidence therefore in the suspenders former memorial being absolutely false, the merits of the suspension turn upon the above report, which might he humbly submitted without any commen- tary, and very little shall be said upon it. It from thence appears, tha Susan is by no means an idot; and indeed that is evident from the conversation the reporters had with her. She enters into the discussion of her father’s settlements, and condescends with accuracy on the specific sum to which she had right, but had been deprived of by an act of injustice, as she ap- prehended: She enters with the common feelings into the family- quarrels, and resents with keenness the behaviour of her nephew; and declares, that her money shall not be left in the hands of any person with whom he has a concern. These point out a mind entire, at lead for the administration of so small a sum as L. 300. The reporters further say, Her neighbours think that her memory has failed, that she is something deafis h, and an old fra il woman. All these may be very true, and are incident to every woman of Susan’s age. B ut they are no reasons for the additional load of disgrace, by find- ing her incapable of managing her little stock, and laying a foun- dation for quarrelling the settlements she may make of it. The reporter s distinguish betwixt her ability to manage the current interest, but how far she may be liable to sin istrous impressions, if the principal sum be uplifted, either as to a present disposal of it, or by way of testament, we cannot take upon us to say, further than by expressing our suspicions as above.” Now as to the interest, here seems to be no doubt of her power of management. And as to the princal,it is to be wished that the sinistrous influences had been more particularly explained. If it means an unfavourable opinion of her nephew, it is nothing in a court of law; for whether well or ill founded, she has a right to have her money. It would be cruel and barbarous to make an old aunt, with such impressions, absolutely dependent upon such a nephew. And And as to the disposal of this principal, it is immediately to be lent out to Mr Simon Brown and Company merchants in Glasgow, whose security is unquestionable; and this was concerted and a- greed to before the charge for payment was given. This act, as the reporters fay of the interest, w ill take no great reach of under- standing to perfect it. And as this will give ease of mind, com- fort and satisfaction, to the old aunt, is it not most ungracious in the suspenders to refuse it? Surely the court will not. And as to the disposal by testament, it is a moveable sum; and whether lent to the suspenders, or to Brown and Company, may be disposed of by testament. This consideration, therefore, of the report, is quite out of the case. The libera tesamenti factio is anxiously secured by the laws of e- very civilized country. It is to be hoped that it will not be nar- rowed in this country. It is informed, that a few years ago, upon a clamorous petition, the Lords sent one of their clerks with a macer, to make inquiry whether an old woman had, or was capable of making her testament. Her relations would not open the doors: Libera s it testamenti fa ctio said they, and would not ad- mit petitioner, clerk, or macer. They were examined, and dis- missed. Thereafter the testament was brought under challenge and sustained. The suspenders have fallen upon another device of invalidating a testament, by a prejudicial judgement upon the state of mind of their creditor, without action, trial, or evidence. So far has been yielded to their paying securely, that a remit has been made, and a report returned: as from thence, it does clearly ap- pear, they may pay safely; so future questions will not be pre- judged, but left to free and open decision in a proper action. Upon the whole, it is humbly hoped the letters will be found orderly proceeded. In respe c t wherof, &c. D A V. D A L R Y M P L E.