GEORGE BROWNLEE & Ors v WILLIAM WADDELL & Ors (Court of Session)

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.

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 deed having been executed by Mrs Denholm, stante matrimonio, and without the consent or concurrence of her husband, which consent or concurrence could only have been competently given or proved by the husband being made a party to the deed, or at least by writing under his hand.