JAMES M'DOWALL v PETER HILL & Ors (Court of Session)

In April 1824, Mr M'Dowall executed a trust-disposition and settlement, conveying his whole property of every description to trustees and executors. By that deed he left a legacy of L.1000 to his sister, Mrs Menzies, without making any mention of the previous annuity of L.40 which had been provided for her.

All the trustees under the original trust-deed having died except Mr Hill, he, in September 1826, executed a regular deed of assumption in favour of Adam Luke, Joseph M'Dowall, and Joseph Gordon, writer to the signet. Mr Luke declined, but the other two accepted.

From 1826 the annuity to Mrs Menzies was paid by Mr Joseph Gordon, under the power of attorney in his and Mr Paton's favour; and the receipts for the same bore to be from ‘Joseph Gordon, attorney of Daniel M'Dowall, Esq. St Vincent's;’ but it was alleged by the pursuer, that Mrs Menzies was an old woman, who understood no language but the Gaelic, and could not write; and, on receiving the annuity, the receipts were signed for her by her son, without her knowing any thing of the power of attorney, or the fund from which the money was paid.

The present action was brought by the pursuer, as factor for Mrs Menzies, concluding against the surviving trustee under the trust-deed of 1818, and the accepting trustees under the deed of assumption of 1826, for payment of the annuity of L.40 from Whitsunday 1830.

The Lord Ordinary repelled the defence, and decerned against the defenders, in terms of the conclusions of the libel.