#6780 - Lady Hoof Of Avalon V. Mackinnon - Restitution of Unjust Enrichment BCL

Lady Hood of Avalon v. Mackinnon

Facts

By an indenture of settlement made upon the marriage of the plaintiff, Baroness Hood of Avalon, with the late Lord Hood of Avalon (referred to as the Hood settlement), certain personal estate was settled upon trust during the joint lives of Lord Hood of Avalon and the plaintiff to pay the income to Lord Hood, and after the death of either of them to pay the income to the survivor of them for life, and after the death of such survivor in trust, as to the capital and income, for all or such one or more exclusively of the other or others of the issue of the marriage, if more than one, in such shares and in such manner as Lord Hood of Avalon and the plaintiff should by deed, with or without power of revocation and new appointment, jointly appoint…

There were issue of the marriage two daughters and no other child, the elder being the defendant Emily Isabel Mackinnon, and the younger Fanny Sophia Allen. On the occasion of the marriage of Emily Isabel to Francis Alexander Mackinnon, and with the view of making a provision for that daughter and her issue, Lord and Lady Hood of Avalon executed a deed poll, whereby it was appointed that the trustees of the Hood settlement should, subject and without prejudice to the respective life interests therein of Lord Hood of Avalon and the plaintiff, stand possessed of one equal half share of the stocks, funds, shares, securities, or property then or thereafter subject to the trusts of the Hood settlement in trust for the defendant E. I. Mackinnon absolutely….

Lord Hood of Avalon died on November 16, 1901. Fanny Sophia, the younger daughter, married Henry Allen, but no appointment or settlement was made on such marriage.

The plaintiff on October 24, 1902, in exercise of the power given to her by the Hood settlement, irrevocably appointed that after her decease the sum of 1600l. should be raised out of the funds subject to the trusts of the Hood settlement and be held in trust for Mrs. Allen (the younger daughter) for her absolute benefit. On January 16, 1904, the plaintiff, being desirous of further assisting her younger daughter, executed another deed poll irrevocably appointing a further sum of 7000l. in similar terms to Mrs. Allen absolutely.

The plaintiff, on August 4, 1904, in exercise of the power under the Hood settlement, irrevocably appointed a sum of 8600l. to the defendant E. I. Mackinnon absolutely. (Elder daughter. 7000 + 1600).

The plaintiff by her statement of claim alleged that this last deed was executed under a serious mistake as to the facts, and that her sole object was to produce complete equality between her two daughters, and that had she been aware of the former appointment to her elder daughter she would not have executed the deed of August 4, 1904…. the plaintiff sought a declaration that the deed poll of August 4, 1904, should be rescinded and set aside. The plaintiff deposed that she had no recollection whatever of the joint deed of appointment of April 18, 1888, to her elder daughter, although she admitted her signature to the deed.

Issue

Now the question is whether, in that state of facts, I can, consistently with the law, say that such a mistake on the part of the appointor entitles her to have the deed rescinded.

Holding

Now, I am satisfied that at that moment of time Lady Hood had not the slightest recollection, and her solicitor had not the slightest knowledge, of the appointment to the elder daughter which had been made some six years previously on the occasion of her marriage.

It seems to me that when a person has forgotten the existence of a pre-existing fact, and assumes that such fact did not pre-exist, he is labouring under a mistake, and he acts on the footing that the fact really did not pre-exist; and, venturing to criticize the language of Lord Esher, I should have thought that a man makes a mistake in forgetting an existing fact quite as much as he does in assuming a state of things to exist which does not in fact exist.

In an action to recover money paid by mistake, it is sufficient to prove that at the time of the payment the person paying was actually ignorant that the money was not due, although he had the means of knowledge, and it was owing to his own carelessness or forgetfulness, that he was in fact ignorant.

Having regard to the facts which I have stated, I must assume that Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake when she thought that equality would be brought about by the...