Scottish Court of Session Decisions

William Murray, sometime farmer, thereafter residing at Turriff, in the county of Aberdeen, died in December 1845, leaving a holograph will and codicil, both dated 6th February of that year. By that will he nominated and appointed certain persons to be “my curators and sol executors for my daughter Charlotte Murray, … with full powers to them to intromite with my whole movable subject, goods and gear of every kind and executory of every denomination as the same shall be, and that may be pretaining and belonging to me or due and adbeted to me, at the time of my death, and to give up inventories, &c., competent to executors and curators.” After directing payment of debts, &c., and of certain legacies, the deed continued—“The whole resedue of my effects, after what is given away by this will and testament, I leave to my daughter, Charlotte Murray, in the following menar and conditions under, the managmint and controal of her curators, &c. It is to be understood that, after my decease, mydaughter Charlotte Murray's mantinance and edication is to be directed by hir curators, untill shis fefteen years of age, and afterwards to apply hirself as her curators shall think proper to direct hir. Also it is my will and desire that my daughter Charlotte Murray should not marrie any one without the consent and approbation of a majorety of hir curators, hereby declaring, if she shall do otherways, the whole effects left or given to hir by me shall all be forfited, or should she die without leaving lafull begoten children in life at the time of her decease, in both cases hir whole effects shall returne back to my kindred in the following manner, should be divided into three parts, one part to my nice, Mrs Alexr. Stephen; and one part to my cousin, William Murray senior, in Slap; and the other part to be divided equally amangest my cousions of the Stonwlls family, who may be in life at the time this will and testament could take effect in this way, but on this last part of my will I leave a discreatonery power to curators for to give a part to my daughter altho her conduct in every point is not exactly conformed to hir curators wishes, if her general charactor is not notorious bad.” By the codicil the testator bequeathed to Charlotte Murray his household furniture, &c.

Charlotte Murray was now upwards of 30 years of age, and unmarried.

In an action of multiplepoinding raised by William Murray's executors, Charlotte Murray claimed the testator's household furniture and the rest of the fund in medio absolutely in fee.

Mrs Elspet Murray or Stephen, the nearest of kin of William Murray, and her husband, claimed that the executors should make provision for the conditional or contingent interest in one third part of the estate provided to the claimants, should Charlotte Murray forfeit the residuary bequest in her favour, or die without leaving lawfully begotten children in life at the time of her decease.

The Lord Ordinary ( Jenviswoode) sustained the claim of Charlotte Murray, finding that, under a sound construction of the said will, the conditions and provisions above referred to had relation to and were intended to have effect only during the period of the minority of the said Charlotte Murray, and that, on her attainment of majority, the office and powers conferred on the curators named in the said will came to an end; and that the said Charlotte Murray, on attaining majority as aforesaid, became absolutely entitled and vested as in * her own right in the whole residue of the moveable estate of the deceased, including therein the deposit-receipts mentioned in the fifth head of the condescendence, and the household furniture and others mentioned in the codicil of the same date as the will, subject only to the exception therein specified. And finding the raisers entitled to expenses out of the fund in medio, but in the competition finding no expenses due to either party. In his note his Lordship said—“It appears to the Lord Ordinary to be his duty to draw from the language actually used what the intention of the testator was, and he has now come to the conclusion that, under the will of the deceased, the claimant, Charlotte Murray, took, on attaining majority, a full vested right in the whole residue of the estate. In arriving at this result, the Lord Ordinary has been, in a considerable degree, moved by the consideration that the persons appointed executors are also named ‘curators’ to his daughter. It has appeared to the Lord Ordinary to be almost necessary to assume that, in using a term which is strictly technical and legal, the deceased knew that he was nominating persons who were to hold, and could hold, a certain relation towards his daughter during her minority only. Can it be supposed, for instance, that in providing as a condition that she should not marry without the consent and approbation of her curators, the truster contemplated a superintendence and control of his daughter's conduct as respected the matter of marriage during her whole life? The Lord Ordinary thinks not. But if this be so far the just interpretation of the will of the deceased, it tends directly to prove his purpose, that on arriving at majority, at least, she was to be vested with the full right and fee of the residuary estate, because on her majority the office of curators naturally and necessarily would come to an end, at least in the absence of most explicit and express provision to the contrary. In short, according to the views of the Lord Ordinary, the true intent of the truster was to appoint guardians to his daughter, with special powers, which were to be operative while such an office could legally exist, but without any intention on his part to create a trust, the powers of which were to endure for an indefinite period, and perhaps during the whole life of his daughter.”

Mrs Stephen and husband reclaimed.

Charlotte Murray also reclaimed on the matter of expenses.