Scottish Court of Session Decisions

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Cite as: [1868] SLR 6_271, [1868] ScotLR 6_271

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SCOTTISH_SLR_Court_of_Session

Page: 271↓

Court of Session Inner House First Division.

Thursday, January 28 1868.

Lord President

6 SLR 271

Inglis

v.

Inglis and Others.

Subject_1Succession
Subject_4Heir—Widow.
Facts:

A widow cannot take benefit from a bequest to the lawful heirs of her husband, she not being one of his heirs.

Headnote:

Inglis, who died in 1860, provided by his settlement as follows” Thirdly, whereas it is my purpose in my own lifetime, and as soon as I can accomplish it, to invest in heritable or other security, in the name of certain trustees, a sum of £1600, in trust, for behoof of my grandson and heir-at-law James Inglis, son of my said deceased son George Inglis, in liferent, for his liferent use only, and of the parties after-mentioned in fee: And whereas it may happen that I shall fail to accomplish the said investment during my lifetime, then, and in that case only, I direct my trustees to lay out and invest on such heritable or other security as they shall consider good and sufficient a sum of £1600 sterling, for behoof of the said James Inglis, my grandson, in liferent, for his liferent use allenarly, and after his death, the fee of the said sum of £1600, to be divided into two equal parts or shares, one whereof shall be payable to or amongst the lawful heirs of the said James Inglis, the life-renter,” &c.

James Inglis, the liferenter, died in 1867, leaving no issue. His widow claimed a part of the fund as
Page: 272↓
one of the heirs in mobilibus of her deceased husband.

The Lord Ordinary ( Barcaple) found “that, according to a sound construction of the deed of directions executed by the truster, James Inglis, on 22d May 1860, the direction therein contained that one-half of the sum of £1600 thereby directed to be invested for behoof of the truster's grandson, James Inglis junior, for his liferent use allenarly, should be divided into two equal parts or shares, one whereof should be payable to or amongst the lawful heirs of the said James Inglis, the liferenter, constituted a bequest or destination of the fee of said half of said sum to the proper heirs in mobilibus of the said James Inglis junior, and did not confer any right to any portion thereof upon his widow in the event, which has happened, of his dying survived by a widow.”

“ Note.—The primary question is as to the intention of the truster in the destination of the fee of half of the sum of £1600, which he directed to be invested for behoof of his grandson in liferent allenarly, and the fee ‘to be divided into two equal parts or shares, one whereof shall be payable to or amongst the lawful heirs of the said James Inglis, the liferenter.’ It is contended for the widow of the liferenter that the truster's intention was merely to tie up the fund so as to prevent it being squandered or dilapidated by his grandson leaving it at his death to go to the parties who would have taken it if it had been moveable property vested in his person, including his widow, if he should leave one. The Lord Ordinary thinks that that construction is excluded by the terms of the provision giving the fund to the lawful heirs of the liferenter. That is, no doubt, a very flexible expression, and one requiring construction in the present case. The Lord Ordinary has no doubt that it must be held to apply to heirs in mobilibus, and not to heirs at law in heritage, the direction to invest in heritable or other security being merely for the purpose of securing a fund for payment of the liferfent, and the £1600 being directed to be divided and paid by the trustees to the parties to whom the fee was destined. But the widow is not, in any sense, one of the lawful heirs, and the Lord Ordinary does not think she can be held to be included by that description of the parties to whom the fee is bequeathed. The truster may possibly have had the intention for which the widow contends, but there is no evidence of that to be found in the deed, according to any construction which can be legitimately put upon its terms.”

Mrs Inglis reclaimed.

Scott and Brand for reclaimer.

Lord Advocate ( Moncreiff) and Rettie for respondents.

Gebbie for trustees.

At advising—

Judgment:

Lord President—This case is at first sight clear enough, and I think it is also clear enough after careful consideration. But I am disposed to think that it was quite worthy of serious argument and consideration, for it is concerned with very delicate principles of law. The words of the settlement on which the whole question turns are few and simple. A sum of £1600 is settled on James Inglis in liferent, “for his liferent use allenarly, and after his death the fee of the said sum of £1600 to be divided into two equal parts or shares, one whereof shall be payable to or amongst the lawful heirs of the said James Inglis, the liferenter.” Now, the lawful heirs of the said James Inglis may mean either the heirs in mobilibus of James Inglis, the fund being moveable, or it may mean those parties, whoever they may be, who would have taken the fund on the death of James Inglis intestate, if it had been vested in him, as the reclaimer contends. In the latter case the reclaimer is entitled to prevail, for then she would have been entitled to one-half of this sum jure relictae, there being no children of the marriage with the deceased James Inglis. The question is, whether a widow, claiming to take her legal rights on the death of her husband, is in any sense an heir of her husband? I am of opinion that she is not. I think, however loosely the term heir may be used in settlements, it never can be understood to comprehend such a right, or the person in such a right, as is possessed by a widow on the death of her husband. The character of heir, of every class, is that of succession to the deceased in respect of a right of blood, but it does not, and never can, involve in any sense or degree a jus crediti. As regards the widow's jus relictas, she is a creditor, just as the children are creditors for their legitim. She is a creditor in this most important sense, that she is entitled to insist on payment of one-half or one-third of the moveable estate of her husband against his express will, unless previously excluded. Certainly in that sense she could hardly be called an heir, and if her right is of such a nature that she can take it against the express will of the testator, it must be the same when she takes it out of his intestate estate. It has been settled that she claims her jus relictoe against the executry, and as a matter of debt due by the executor to her. She does not confirm to her jus relictae, and so it appears to me that there never can be a legal right in her, in respect of her position as widow, that can be properly described as a right of succession. In a popular and loose sense, no doubt, it may be so called. A purchaser is in one sense a successor—he is called a singular successor. The case of Muirhead, when properly understood, raises no difficulty. All it appears to settle as matter of general doctrine is clear, that the right of a widow jure relictae lies against the executry estate of the deceased husband. But not the less for that reason is it a jus crediti preferable in competition with legatees or next of kin, or any persons taking from or representing the intestate. I therefore come without any difficulty to the conclusion that the Lord Ordinary is right.

The other judges concurred.

Counsel:

Agent for Reclaimer— D. F. Bridgeford, S.S.C.

Agent for Respondent— D. T. Lees, S.S.C.

Agent for Trustees— M. Macgregor, S.S.C.
1869