Scottish Court of Session Decisions

N. C. Campbell and C. T. Couper, for the pursuers, argued—By the death of Mr Craig a right to legitim vested ipso jure in the children, to entitle them to which it was not necessary that they should make a claim. By the death of Alexander Craig, the son, his share accrued to his sister, Mrs Ritchie, and she did nothing up to the period of her death, which occurred in minority, to renounce it. The trustees were not entitled, as tutors and curators, even admitting that they properly accepted and acted as such, to renounce the children's right to legitim, and it is nowhere relevantly averred that they did so. The pursuers were entitled to maintain the action as trustees nominated under the marriage contract of Mrs Ritchie and her husband, her legal assignee.

The Solicitor-General and A. Moncrieff, for the defenders, answered—As to the share of legitim claimed through Alexander Craig, the son, the action is untenable, in respect that his tutor, on his behalf, elected to take the provisions under his father's settlement, and that the said election was for the manifest advantage of the pupil. The claim of the pursuers, as in right of the late Jane Paterson Craig or Ritchie, is barred by the homologation of her father's deed of settlement on the part of Mrs Ritchie and her husband in their antenuptial contract of marriage. By accepting the provisions made by Mrs Craig in the marriage contract Mr and Mrs Ritchie waived their legal rights, both through Mrs Ritchie and her brother.

The Lord Justice-Clerk said—The shape which this question has taken in the course of the discussion is a little different from what appears on the face of the papers; but the real question is whether the trustees of Mr Craig, who are called as defenders, have stated any relevant defence. It is quite true that the case does not come to an end even if there is no relevant defence; but we are in a position to dispose of the defences, which, I think, are irrelevant. The settlement of Mr Craig gave a total liferent of his estate to his widow, and divided the fee among the children in certain proportions only if they survived their mother. If they predeceased, they took nothing under the settlement. The children were in pupillarity at the time of their father's death, and they had a right to legitim independently of the provision in their father's settlement; and so far as I can see, their claim of legitim would not have excluded their provision under their father's settlement, because it does not say that the contingent gifts of the settlement were to be in full of legitim. In that state of matters, I doubt whether any guardian could renounce claims of legitim for children. It may be said that the election may be necessary in certain circumstances where the election is for the benefit of the ward, and the administration of the estate renders it indispensable in the interest of third parties that the election should not be postponed. But I see no ground of any such necessity here. It does not appear to me that the administration of Mr Craig's estate would have been at all different whether the claim of legitim had been maintained or not. If not, then the widow got the whole liferent; and if it were, the result would practically still have been the same, because then the mother would have heen the administrator of the whole estate for herself and for her children. I do not see therefore, that there was any case of urgency which required the trustees to make the election which it is said they did. Further, assuming the trustees had a power to elect, it is quite clear they did not do it. They did not, in the first place, accept in terms of the Act of Parliament. The Act provides that no tutor or curator shall have power to accept the office until he has made up inventories and complied with other solemnities. Now, nothing having been done by the trustees of Mr Craig to

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