Scottish Court of Session Decisions

This was a special case presented by the trustees of the late Major General Ogilvie and some of the beneficiaries under his trust-deed to have their rights determined. The trust-deed conveyed all the truster's heritable and moveable estate to trustees for certain purposes. Mrs Helen Allan or Ogilvie, his wife, was, in the event of her surviving him, to get all his household furniture, bed and table linen, plate, hooks, and wines and spirits in his cellars, and a liferent of his whole trust-estate. By the third purpose the truster directed, on the death of Mrs Ogilvie, if she survived him, that the trust-estate should be realised, and certain legacies paid to his half-sisters Isobel and Margaret, and Barbara, the daughter of his half-brother Thomas; £3000 in Bank of Bengal stock to his half-brother James; and the lands of Blackford conveyed to his half-brother Archibald; it being declared that if the trust-estate was not sufficient to meet the three first legacies, certain specific diminutions were to be made on the two last, or the trust-estate divided in a different manner as therein specified ; but if after payment of the legacies there was any residue it was to go to the widow, to be disposed of by her as she might think proper. It was also declared that any codicil he might make should be held part of his trust-deed. He executed such a codicil, and by it revoked the bequeathments to his half-sisters Isobel and Margaret, and changed the destination of his niece Barbara's legacy. The codicil went on to say:—“I confirm the bequests in the will to my half-brothers James and Archibald, with the addition that if the said James shall survive myself and spouse he shall be considered my residuary legatee not only of bank shares hut of all other property; also, that if the surplus of my personal property after paying all other legacies shall exceed Twelve thousand pounds sterling, he shall pay to his brother Archibald or his heirs such amount as, added to the assumed valuation of Blackford, &c. (if unsold by me), shall make his share up to Six thousand pounds. But if the aforesaid surplus do not exceed Twelve thousand pounds, then its amount shall be added to the assumed value of Blackford, &c., and the aggregate sum divided into five parts, three of which shall fall to James, and two to Archibald. In any case Blackford, &c., if unsold, is to be part of the portion of the latter at the assumed value of Two thousand seven hundred pounds sterling. I further authorize my wife Helen, if she survive me, to alienate by gift, or bequeath by will, any portion or portions of my personal or moveable property of which she is to enjoy the use or income, not exceeding in all Three thousand pounds sterling, and she may include plate, furniture, &c., at a valuation, but it shall he optional with my surviving executors or executor to pay cash instead.”

The truster died on 20th September 1847, survived by his widow. James Ogilvie predeceased her on 21st July 1865, leaving six children ; and on 24th March 1866 she executed an assignation by which, on the narrative of her desire to fulfil what her husband intended, she conveyed to trustees the whole residue provided to her under her husband's trust-disposition, directing them, after payment of her debts, &c., and her husband's legacy of £6000

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to Archibald, to pay the remainder to and in favour of James' children. She, however, retained her right to bequeath or alienate any part of the trust-estate to the extent of £3000.

Major-General Ogilvie's next of kin at his death were Archibald and James and Isobel, wife of Mr Miller of Leithen. The trust-estate was computed to amount to upwards of £25,000, and after deduction of the undisputed legacies to upwards of £9000, and of the disputed legacy to Archibald of £3300, to nearly £6000. The value of the estate as at May 1868 was estimated at upwards of £42,000. The opinion of the Court was asked on the questions,—Whether Mrs Miller was entitled to one-third of the residue as next of kin, on the ground that under the codicil the provisions to the widow were to be held as revoked ? and Whether, in that event, Archibald was entitled to his legacy under the codicil ?

Fraser and Watson, for Mrs Miller, argued—Under the trust-disposition the widow is residuary legatee. But the codicil must be read as implying a revocation of this appointment. And as James did not survive the widow, the residue must be treated as intestate succession. Archibald is not entitled to the legacy given to him by the codicil, because he was only to take if James took.

Solicitor-General and Monro in answer.

The Court held that, as James had predeceased the widow, the codicil was not to be read as revoking the bequest of the residue in her favour.

Solicitor-General having asked for expenses, Watson argued—This is not a case for expenses. If a multiplepoinding had been brought the trustees would have got the expenses of raising the action out of the trust-estate; and the expense of a claim in a mnltiplepoinding would be much greater than a special case.

The Court gave expenses, observing that under this special case the trustees did not get decree of exoneration, and if Mrs Miller chose this form of action she must abide the consequence of failure.