Scottish Court of Session Decisions

Lord Murray by his settlement vested his whole estate, real and personal, in his surviving wife, as in the first instance sole trustee, and gave power to her to appropriate to herself the fee of the whole. Lady Murray exercised this power in her own favour by her deed of 25th April 1859.

By an after deed, of 7th September 1860, Lady Murray conveyed to trustees specially named what she called her “appropriated estate,” or more fully described as “the whole of my late husband's estate, both heritable and moveable, real and personal, which has now been appropriated by me and made my own, and which I propose hereafter in this and my other deeds and writings relative thereto to distinguish as my appropriated estate.” By a separate deed she declared the purposes of the trust in favour of various of Lord Murray's relatives. In the first-mentioned deed she stated—“I hereby expressly provide and declare that any list, or account, or other statement, already signed or otherwise sanctioned, or to be hereafter signed or otherwise sanctioned by me, of the property and funds of which my appropriated estate consists, or shall hereafter consist, shall be held as conclusive, and that it shall be an inherent condition of right to the payment of all my husband's specific bequests, and also of all my own bequests, whether specific or residuary, that the parties in right thereof shall acquiesce in the amount and particulars of my appropriated estate as so ascertained, without question, and shall also, without question, acquiesce in my intentions, as expressed in my said deed of declaration, appropriation, and conveyance, and in this and the other deeds of settlement to be left by me.” In her separate deed of directions she anew says—“I hereby declare that the whole bequests, specific and residuary, now made, or to be hereafter made by me, are and shall be subject to the whole conditions and declarations contained in my trust-disposition and settlement; and that if any of the parties in right of the said bequests shall question the amount and particulars of my appropriated estate, as ascertained in the manner pointed out in my said trust-disposition and settlement, or shall in any respect question my deed of declaration, appropriation, or conveyance of my husband's estate, or my said trust-disposition and settlement, or any of my other deeds of settlement, such parties shall entirely forfeit all bequests, specific and residuary, made by me to them; and I hereby declare that their acquiescence in all my arrangements shall be an inherent condition of their right to receive payment of their several legacies, whether specific or residuary.”

There was afterwards made out by Lady Murray, or under her authority, what was entitled “List of Lady Murray's Appropriated Estate, as at the 31st December 1861.” Lady Murray, on 15th March 1861, subscribed this list, and a docquet attached to it, which declared “that the foregoing is a list of my appropriated estate, as at the 31st day of December 1860, and is to be taken and held as my appropriated estate, devised and dealt with under that name in my trust-disposition and settlement of my appropriated estate, and relative deed of directions in relation thereto, which, as they now stand, I hereby confirm and repeat.”

A question now arose concerning two several sums, which originally formed part of Lord Murray's estate, but were not comprehended in this list. Of these sums, it was said by Sir George Campbell and others, who were in right generally of the appropriated estate, “Neither Lady Murray, nor any one acting on her behalf, knew of the existence of the sums which form the fund in medio at the time the list was signed, or at any other time during Lady Murray's life.” By another claimant, also interested in that estate (Mr James Wolfe Murray), it was said—“At the time when the list mentioned in the 4th article of the condescendence for Sir George Campbell of Succoth, Bart., and others, above referred to, was prepared, Lady Murray was not aware of the existence of the said two funds.” This ignorance of the funds in question on the part of Lady Murray these claimants offered to establish by evidence.

In regard to these two sums, it was maintained on one side that, being clearly part of Lord Murray's estate, and only omitted from Lady Murray's list in consequence of her ignorance of their existence, they must be dealt with in the same way with the articles comprehended in the list, and as if they had been themselves comprehended. On the other hand, it was contended that the effect of their omission from the list was to incorporate the sums in Lady Murray's own estate, and to cause them to pass to those in right of that estate, as proper parts of it.