Wednesday, October 17, 2018

McCaig's Tower

As a lawyer (retired), I'm naturally interested in legal cases that took place along the Kyles and Western Isles. Apart from the points of law involved, case reports often reveal interesting historical detail. Thus, I've written before about the legal sequels to the wreck of the brigantine Aid of Dundee off the coast of Harris in 1819 (here); the sinking of the Islay mail steamer Lochiel in 1960 (here); and a dispute between rival ferry operators across Kyle Akin (here). So here's another episode from the legal archives, this time concerning McCaig's Tower, the great rotunda which crowns Oban's skyline.

Photo credit - Gerhard Lehner

The tower was built in the 1890s by Lismore born local bank manager, John Stuart McCaig. You can read about its construction in this article on Undiscovered Scotland. The article also speculates about what more McCaig may have intended for the site before he died just as the Tower was being completed in 1902. Well, the litigation which ensued from the terms of his will provides the answers.

One of a family of nine none of whom married, Stuart McCaig lived at the time of his death with his two surviving siblings, his brother Duncan and sister Catherine. They lived at John Square, in Oban (described in the Ordnance Survey name book as "a superior block of building on the west side of George Street", it no longer exists having been replaced by a parade of shops with the same name: see here) which Stuart and Duncan owned jointly. Duncan died a month after Stuart leaving Catherine as the sole heir to both of them.

Plaque above the entrance to the Tower - picture credit Andrew Bowden

Stuart McCaig left an estate consisting of real estate yielding an annual rent of around £2,500 (about £300,000 in today's money) plus moveable estate (banks accounts, stocks, shares etc.) of about £10,000 (around £1 million today). But all Catherine was left out of this fortune was a life annuity of £300 (£35,000 today). The rest of Stuart's estate was left in trust for the following purposes:-

erecting monuments and statues for myself, brothers, and sisters on the tower or circular building called the Stuart M'Caig Tower, situated on the Battery Hill above Oban, the making of these statues to be given to Scotch sculptors from time to time as the necessary funds may accumulate for that purpose; also that artistic towers be built on the hillock at the end of Aird's Park, in the parish of Muckairn, and on other prominent points on the Muckairn estate, and on other prominent places on the various estates; such in particular on the Meolreoy of Balagown, lying north-east of Kilachonish farmhouse; my wish and desire is to encourage young and rising artists, and for that purpose prizes be given for the best plans of the proposed statues, towers, etc.,

In a codicil signed a few months before his death, McCaig added the following detail:-

I have to describe and explain that I particularly want the trustees to erect on the top of the wall of the tower I built in Oban, statues in large figures of all my five brothers and of myself, namely, Duncan, John, Dugald, Donald, Peter, and of my father Malcolm and of my mother Margaret, and of my sisters Jean, Catherine, Margaret and Ann, and that these statues be modelled after photographs, and where these may not be available that the statues may have a family likeness to my own photograph or any other member of my foresaid family and that those statues will cost not less than one thousand pounds sterling [£115,000 today].

Oban in the 1870s before McCaig's Tower had been built - picture credit National Galleries of Scotland

Stuart McCaig had also specified in his will that his trustee was to be Glasgow University but that the trust was to be managed locally by his lawyer, Donald McGregor. The latter had a concern that the will (which had been written by McCaig personally) contained two mistakes which a lawyer wouldn't have made - it didn't say what was to happen to Stuart's moveable estate and didn't say what was to happen to the real estate after the towers and statues had been paid for. So McGregor got Catherine - as Stuart's next of kin who would inherit anything not disposed of by his will - to sign a "Deed of Assignation and Corroboration" whereby she agreed that the towers and statues were to be paid for out of the moveable as well as the real estate and that, after the statues and towers had been erected on the two sites specifically mentioned in the will, the whole remaining estate (real and moveable) was to be applied towards endowing a new chair at Glasgow University to be called the John Stuart McCaig Chair for teaching "sculpture, painting, music, or other fine art or kindred objects".   

Not long after, Catherine began to have doubts about all this. In the ensuing litgation, she alleged she had asked the lawyer, Mr MacGregor, to see Stuart's will but he had refused. Then, even more audaciously, the lawyer asked her to sign another document making over the share in the house at John Square she had inherited from Duncan in return for the right to live there rent free for the rest of her life. This she refused to do and instead raised court actions against the University and McGregor to set aside the Deed of Assignation and Corroboration (which, she alleged, she had signed only because she was elderly, in frail health and grieving the recent deaths of her brothers and had lacked independent legal advice) and Stuart's will and codicil itself.

A view of Oban of Oban showing McCaig's Tower at an early stage of its construction in the 1890s. This is a photo I took of a photo hanging in the Calmac Terminal Building at Oban

In fairness to the memory of Donald McGregor, the legal case reports don't reveal whether Catherine McCaig's allegations of his questionable ethics were proved. This is because the reports are more concerned with the points of law arising than the actual outcomes for the parties. All we're told is that the court decided there was a stateable case fit to be sent for trial by jury. We're not even told if the Deed of Assignation and Corroboration was, in the end, set aside although I think it must have been or the parallel case to set aside the will and codicil could not have proceeded. In regard to that, Catherine's lawyers realised that, while Stuart had undoubtedly been somewhat eccentric, they could not go so far as to claim he was mentally unbalanced rendering his will vulnerable to challenge on that account. So they had to attack it on the more subtle ground that the detail of the towers and statues scheme was too vaguely expressed in the will to be put into effect - for example, were the eleven statues of the McCaigs to cost £1,000 in total or £1,000 each?

The first judge consulted dismissed this argument and upheld the will, albeit not without some hesitation. But ruling that the intention was that the statues be £1,000 each, he remarked that the towers and statues scheme:

may be fantastic, and may result in what most people will consider waste of money. But the money was Mr. M'Caig's, and the project is neither, so far as I can see, contrary to public policy or morals, nor [referring to a recent case in which a bequest "for the advancement and diffusion of the science of phrenology" had been upheld] more vague and indefinite in scope than some of the schemes which have been held to be within the recognition of the law.

Inside the Tower at dusk - picture credit Andras Sobester

Catherine McCaig appealed. This time her lawyers deployed a different legal argument, namely, that one can only disinherit one's nearest of kin by a legacy which benefits someone else or the public at large whereas Stuart's towers and statues scheme was of no benefit to anyone. With this the four appeal judges agreed: the incidental benefits in the shape of the prizes rising young artists stood to win didn't count. Nor did this fall within the recognized exceptions of bequests for memorials to historical personages or events or for "beautifying or embellishing a town or neighbourhood" which are of public benefit.

On this narrow technical ground (that the towers and statues scheme didn't benefit anyone), the appeal judges rested their judgement overturning the will. But it didn't prevent two of them expatiating on their personal views of Stuart McCaig and his scheme. The Lord Justice Clerk said:-

He seems to have been possessed of an inordinate vanity as regards himself and his relatives, so extreme as to amount almost to a moral disease, though quite consistent with sanity.

And Lord Kyllachy said:-

I consider that, if it is not unlawful, it ought to be unlawful, to dedicate ... the whole income of a large estate ... to objects ... which have no other purpose or use than that of perpetuating at great cost, and in an absurd manner, the idiosyncrasies of an eccentric testator. ... Indeed, I suppose it would be hardly contended to be [lawful] if the purposes, say of the trust here, were to be slightly varied, and the trustees were, for instance, directed to lay the truster's estate waste, and to keep it so; or to turn the income of the estate into money, and throw the money yearly into the sea; or to expend the income in annual or monthly funeral services in the testator's memory; or to expend it in discharging from prominent points upon the estate, salvoes of artillery upon the birthdays of the testator, and his brothers and sisters.





Thus did Catherine McCaig eventually inherit her brother's fortune except that it wasn't mere avarice which had motivated her to challenge his will. Rather, according to one of the appeal judges, it was because she did not wish to see her family ridiculed by being immortalised in such an extravagant manner. Thus, when she, a spinster with no known surviving relatives at all, made her own will in 1908 she provided for a modest statue of her brother Major Duncan McCaig to be put up in front of the Volunteer Drill Hall in Breadalbane Street in which he had been active. That done, she directed her trustees to hold the remainder of her estate and apply the annual income in the following order: (1) upkeep of Duncan's statue; (2) a supplement of £20 per annum to the stipend of the United Free Church Minister of her native Lismore; (3) £20pa to Oban Town Council to spend on coal for "deserving poor people in Oban"; (4) annuities of £20/30 to three friends; and (5) the rest towards:-

the assistance of the education and maintenance of Gaelic-speaking students at Scottish schools, universities, or church colleges, in providing lectures calculated to further the knowledge, use, and study of Gaelic language and literature

and finally for erecting and equipping a building in Oban to be called the McCaig Memorial Institute.

But then Catherine - mindful perhaps that the bulk of her estate (worth about £30,000 or about £3 million today) had been inherited from Stuart and that she had only got this because she had challenged his towers and statues scheme and that it might be only be fair give his pet schemes a chance before implementing her own - had a change of heart. She made a codicil to her will. This specified that, after the statue of Duncan had been provided for but before anything was spent on UF Ministers, deserving poor, friends or Gaelic education, McCaig's Tower was to be fenced off to exclude the public, its interior leveled off and bronze statues costing not less than £1,000 each of herself and her parents and eight siblings be erected inside. As that was estimated to absorb the whole of the trust income for at least eight years, the Lismore UF congregation, Oban Town Council and the three friends, all of whose annual payments would be delayed, challenged the codicil in court.

Lismore United Free Church as seen in Google Streetview

This time, the legal debate centred on the question of whether Catherine's statues scheme fell within the recognised exception to the rule that a trust must benefit someone (or the general public) of a family memorial "on a customary and rational scale" (usually in a cemetery) or a proportionate statue or monument (usually somewhere else) to a national or local celebrity. The judges consulted were unanimously of the opinion it did not. Describing it as a "sheer waste of money", Lord Salvesen continued:-

The prospect of Scotland being dotted with monuments to obscure persons who happened to have amassed a sufficiency of means, and cumbered with trusts for the purpose of maintaining these monuments in all time coming, appears to me to be little less than appalling.

These comments in the written judgement were, however, comparatively mild compared with the Lord Justice Clerk's remarks in court alluding to a dramatic recent turn of events in the course of WWI as reported in the Glasgow Herald (page 11, 2nd column) :-

It's a good thing [Catherine's statues scheme] is limited to statues and not to obelisks such as are set up. These things are monstrous. ... It would be useful if Zeppelins could come and knock them down. 

View from McCaig's Tower over Oban Harbour - picture credit Oban ships and scenery

In light of the judicial mockery of the McCaigs, therefore, it's pleasing to record that Catherine's trust for the promotion of Gaelic was duly set up and remains very much in existence today - you can read about it here. The United Free Church of Lismore didn't merge with the Church of Scotland in 1929 as most UF congregations did but carried on as a "UF Continuing" congregation until it closed in 1970 - read about that here. And all I could find out about the statue of Major Duncan McCaig (which the courts did permit) was this selfie on Instagram:-

Duncan on the left: Picture credit NS Design Ltd

But I don't know where the statue is - the Corran Halls perhaps? I do know the site of the Volunteer Drill Hall where it was originally to have been put up is now occupied by two blocks of 60s looking flats at 12-14 Breadalbane Street so perhaps Duncan was moved to his present location when they were built.

Which just leaves to be located the "Meolreoy of Balagown" which Stuart McCaig identified as an eligible site for one of his artistic towers. I think it must be the hill called Meall Reamhar on the OS maps on the west shore of Loch Nell between Ballygowan and Killiechoinich Farms about 2 miles south east of Oban. I don't know that area but from a virtual drive round in the Google Streetview car, the Meolreoy doesn't seem to be a very prominent feature - maybe an artistic tower is just what it needs.


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