Scottish Court of Session Decisions

This was an action of reduction brought by Mrs Cecilia Forrester or Logan, widow of the deceased John Logan, schoolmaster of the parish of Mordington, in the county of Berwick, against the executors of her late husband, and certain other parties interested in her husband's executry, for

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the purpose of reducing her husband's will, so far as it interfered with her legal rights as his widow. The pursuer averred that the provision to her in her husband's will was grossly inadequate and unjust, and she elected to take what she was entitled to jure rclictæ. The defence was that the pursuer had homologated the will in question by various acts, and particularly by expressing herself satisfied with the provisions made in her favour.

The following were the statements made by the defenders in support of the plea of homologation :—“(2) After the funeral, the will wa3 read by the executor, in presence of the pursuer Mrs Logan, two of the sisters of the deceased, viz., Mrs Renton and Mrs Bonthron, Robert Renton, Mrs Renton's son, and the defender George Logan; and on said occasion, after being read, the said pursuer expressed her entire satisfaction with its terms, saying that nothing could be fairer, and she then and there acquiesced in and homologated the same. She at the same time stated that the payment of the interest oftener than once a year would suit her best, and hoped there would be no disagreement about it. The said pursuer repeatedly, on subsequent occasions, expressed her approval of and acquiescence in said will. (3) The executor remained in the deceased's house with the said pursuer for about a fortnight after the funeral, and, with her approval, discharged his duties as executor by looking over and balancing the deceased's books, and making out the accounts. During all that time the said pursuer stated no objections whatever to the will, but uniformly declared her satisfaction therewith and approval thereof. (4) On 1st November 1867 the executor, on the footing and in the belief that the said pursuer had acquiesced in and homologated the said will, obtained himself duly confirmed by the Commissary of Berwick. Before and after that date the said pursuer and the executor had considerable correspondence on the subject. In said correspondence the pursuer continued to express her acquiescence in the will, and her approval thereof; and, at her request, the executor paid her, in February and April 1868, two-sums of £5 each, to account of the interest payable to her under the will, and for which she granted receipts as to account of said interest. On the night of the funeral, as well as subsequently, the pursuer was made acquainted with the amount of her husband's estate, as nearly as could be. (5) Prior to 16th November 1867, the said pursuer took certain articles of the deceased's furniture, and agreed to pay their value, by a writing which she granted of her own free will, and of which the following is a copy, viz.:—‘ Mor ding ton. 16 th No. 1867.—I, Cecilia Logan, hereby agree to take one eight-day clock and one bed with curtains, being part of the furniture of the late John Logan, my husband.

Value of clock, £100

Bed and curtains, 1 10 0

£2100

which I promise to pay to Mr George Logan, executor of the said John Logan.’ (Signed) ‘ Cecilia Logan.’ (6) On 28th November 1867, on the footing and in the belief that the said pursuer had acquiesced in the will, the executor proceeded to administer and distribute the estate. Inter alia, he paid to the defender James Logan a sum of £100, in terms of the will; and he made up and carried through the residue-accounts of the estate with the Inland Revenue. (7) Notwithstanding that the said pursuer had all along approved of, acquiesced in, and homologated said will, and allowed the executor to act on that footing and understanding, she, about the beginning of May 1868, employed Mr Bowhill, solicitor, Ay ton, who on her behalf wrote to Mr Watson, solicitor, Coupar-Angus, the executor's agent, on 6th May 1868, that she was ‘clearly entitled to claim her jus relictæ, and that she is further entitled to claim the liferent of the remaining half of the deceased's moveable estate, excepting the bequest of £100 to James, under the second purpose of the will.’ The said pursuer was not then entitled to repudiate the said will.”

The defender maintained the following preliminary pleas against satisfying the production:—“(1) The pursuer is barred from now questioning or repudiating her husband's will, by mora, acquiescence, and homologation. (2) The pursuer Mrs Logan having approved of, acquiesced in, and homologated her husband's will, and the executor having acted on that footing, she is not now entitled to have the production satisfied; and the action should be dismissed, or the defenders assoilzied from the same, with expenses.”

After proof, the Lord Ordinary ( Jekviswoode) found that the alleged homologation had not been proved.

The defenders reclaimed.

Scott for them.

J. Marshall in answer.

The Court adhered; holding that there was no evidence to show that the pursuer either knew what were her rights under the will, or what her legal rights were apart from the will. Without such knowledge there could be no homologation, even if the acts and expressions founded on by the defenders could in any case amount to that. It was observed by the Bench that in a case of this sort a reduction was unnecessary, as no will could be regarded as disposing of more than the dead's part of the executry.