Smith and Others v. Oliver [1910] ScotLR 86 (10 November 1910)

Smith and Others v. Oliver [1910] ScotLR 86 (10 November 1910)

The pursuers' averments amount only to a gratuitous promise by Mrs Oliver to leave money by will, not to a mandate, onerous contract, or mutual contract. Under Scots law, such a promise can only be proved by writ or oath, not by parole evidence, and rei interventus does not alter this rule. The Lord Ordinary's interlocutor restricting proof to writ or oath is correct.

Citation
[1910] ScotLR 86
Parties
Pursuer: James Augustine Smith and Others (Finance Committee of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh); Defender: James Henry Edward Anscombe (Edward Oliver), executor-dative of Mrs Julia Catherine Squance or Oliver
Jurisdiction
Scotland
Judgment Date
10 November 1910
Procedural Posture
Civil / Appeal (reclaiming Note) From Interlocutor of Lord Ordinary
Outcome
appeal dismissed; interlocutor of Lord Ordinary adhered to
Legal Topics
Promise to Pay by Will, Mandate, Innominate Contract, Proof by Writ or Oath, Rei Interventus
Contract Law Succession Law Evidence Law Promise to Pay by Will Mandate Innominate Contract Proof by Writ or Oath Rei Interventus

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Parties

James Augustine Smith and Others (Finance Committee of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh)

Pursuer

James Henry Edward Anscombe (Edward Oliver), executor-dative of Mrs Julia Catherine Squance or Oliver

Defender

Procedural Posture

Civil / Appeal (reclaiming Note) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether an oral promise to leave money by will constitutes a mandate or onerous contract or is merely a gratuitous promise.
  2. 2 Whether such a promise can be proved by parole evidence or only by writ or oath.
  3. 3 Whether rei interventus (reliance/actings) allows parole proof of such a promise.

Ratio Decidendi

The pursuers' averments amount only to a gratuitous promise by Mrs Oliver to leave money by will, not to a mandate, onerous contract, or mutual contract. Under Scots law, such a promise can only be proved by writ or oath, not by parole evidence, and rei interventus does not alter this rule. The Lord Ordinary's interlocutor restricting proof to writ or oath is correct.

Court Disposition

appeal dismissed; interlocutor of Lord Ordinary adhered to

Orders

  • Proof of the alleged obligation restricted to writ or oath; parole evidence not admissible.