George Ross and Others, Representatives of the late Richard Louthian, v. Sarah Aglianby
Date: 20 January 1797 Case No. No 119.
A widow having accepted a conventional provision out of landed property in England, is not entitled to claim a terce out of her husband's lands in Scotland.
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Richard Louthian died possessed of considerable landed property in England and Scotland. On the 17th September 1782, he executed a settlement of his Scotch property, and in October following, he made a will, by which, after narrating, that “I have, by a deed under my hand, bearing date 17th September, in the year 1782, settled every thing relative to my affairs in Scotland,” he disposed of his whole English property. By these deeds he settled the greater part of his fortune on his wife Sarah Aglianby.
The settlement with regard to his Scotch property was afterwards set aside, in an action at the instance of Mr Louthian's heirs-at-law, on grounds of fraud and undue execution.
Sarah Aglianby, on thus losing the property of the lands in Scotland, claimed her terce out of them.
She was opposed by Mr Louthian's Heirs, who stated, that as she still held her husband's English property, in virtue of his will, her claim of terce was excluded by the act 1681, c. 10.
Mrs Louthian
Pleaded; The sole object of the act 1681, was to operate a just distribution of the husband's property in Scotland, and can have no effect upon a provision made on his wife from lands in a foreign country. The Court cannot judge of the validity of such provision, and will not deprive her of her terce on account of it. As the heir might claim a share of the moveable succession, without collating lands situated in a foreign country, so may Mrs Louthian her terce, without renouncing her right to the property in England.
2dly, It is evident from the preamble of the act 1681, that it was not meant to apply to cases where the husband intended that his widow should have her legal as well as conventional provisions. Now, as Mr Louthian, besides the English estate, gave his wife the property of the lands in Scotland, it must be presumed, that had he known that his settlement as to them was to be found ineffectual, he would at least have been desirous that she should have had her terce from them; 29th Nov. 1791, Jankouska against Anderson, voce Terce.
Answered; 1st, The statute 1681 enacts, in general terms, that any provision made by the husband on the wife, and accepted by her, shall exclude her from the terce, unless the contrary be expressed; the lands in England, given in this case to Mrs Louthian, must therefore have this effect.
If Mrs Louthian is afraid that her provision from the English estate may prove ineffectual, on her renouncing it, the opposition to her present claim shall be withdrawn.
2dly, From the grounds on which Mr Louthian's settlement was reduced, it cannot be considered as his deed, or as affording any evidence of his intention.
The question came to be tried in an action of count and reckoning, at the instance of Mr Louthian's heirs-at-law against his widow.
The Lord Ordinary found, “That in order to bar a claim to the terce, it is not necessary that the conventional provision should be constituted over lands in Scotland: Found it acknowledged that the defender is possessed of a settlement made by her husband in her favour of an estate belonging to him in England; and, in respect it is not alleged by the defender that any other person is in possession of that estate, or competing with her for it, or that she herself is not in possession of it, in terms of her said settlement; and farther, in respect that she does not offer to convey her right to that estate in favour of the pursuer, or even to repudiate her husband's settlement thereof, found, That she is not entitled to claim a terce out of the lands in Scotland.”
On advising a reclaiming petition, with answers, one Judge thought that the reference in Mr Louthian's will to the disposition of his lands in Scotland, together with the whole other circumstances in the case, afforded evidence, that her husband truly intended to give her a provision, equal at least both to the terce and to the lands in England; and that on this ground, the judgment should be altered.
The Lords “adhered.”
Lord Ordinary, Justice-Clerk Braxfield.Act. G. Fergusson.Alt. Honyman.Clerk, Menzies.
Fac. Col. No 10. p. 21.
