Scottish Court of Session Decisions

By one of the clauses of his trust-disposition and settlement, the late Robert Comrie directed his trustees, at the first term of Whitsunday or Martinmas after his death, to pay to his widow Margaret M'Neillie or Comrie the sum of £600 sterling, to be by her at any time divided among her relations as she shall think fit.”

Mr Comrie died on 23d January 1868, and his trustees, in implement of the above direction, paid over to Mrs Comrie the sum of £600, which she upon 1 June 1869 paid into the Bank of Scotland at Kirkcudbright, on deposit-receipt in her own name. Since then it had lain there, she declining to divide it at once in terms of her discretionary power.

Accordingly her brothers and sisters, upon the footing that they were the only next of kin referred to by the testator, and that Mrs Comrie was bound to make the division among them at once, first of all raised separate judicial proceedings against her to compel her to proceed to a division, and then, having each of them arrested the sum on deposit-receipt in the hands of the bank, on the dependence of their actions, proceeded to bring this action of multiplepoinding in name of the bank as pursuers and nominal raisers, against Mrs Comrie and themselves as defenders.

The conclusion of the summons was, that it should be found and declared “that the defender and common debtor, the said Mrs Margaret M'Neillie or Comrie, was constituted by trust-disposition and settlement, executed by her said deceased husband on or about the 27th day of February 1864, and recorded in the Steward-Clerk's Books of the Stewartry of Kirkcudbright, the day of 1868 years, depositary or trustee for the disposal of £600 sterling, thereby declared and provided to be made payable to her by the trustees therein named and designed, at the date, in the manner and for the purpose therein specified, viz.:—That the same should be divided by her amongst her said relations,

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called as defenders hereto as aforesaid, in the way and in the manner prescribed by the said trust-disposition and settlement; or otherwise as may he considered just and expedient by our said Lords, and that said sum of £600 sterling having been advanced and paid to her by her said husband's trustees, and she having deposited the same in the said pursuer's branch bank established at Kirkcudbright, the pursuers are only liable in once and single payment thereof, with bank interest due thereon from the date of said deposit until payment, or until consignation in this process, and that to the person or persons who may have best right thereto; for determining which, the said several persons, creditors, or pretended creditors foresaid, and the said Mrs Margaret M'Neillie or Comrie, common debtor for her interest, and all others pretending right to said sum of £600 sterling, ought to produce their respective rights, claims, and titles, or other interests in said sum, and dispute their preferences thereto.”

The raisers pleaded—“The defenders and other beneficiaries, if any, exclusively interested in said legacy of £600 sterling, with interest due thereon as aforesaid, the fund in medio, and in the division and distribution thereof, are entitled de plano, to have the same divided and distributed amongst themselves as libelled, or at all events, to have it adequately secured and rendered safe in the meantime, by consignation in bank in their names or otherwise, and kept ready for final division and distribution when the proper time arrives for that purpose.”

Mrs Comrie appeared and claimed the whole fund in medio, and to hold the same in terms of her late husband's trust-deed. She pleaded—“(1) The sum of money forming the fund in medio having been left directly to the claimant for the purpose specified in the trust-deed, she ought to.be ranked and preferred primo loco thereto, in terms of her claim, with expenses. (2) The claimant cannot be compelled by legal proceedings to exercise the faculty committed to her by her deceased husband, in regard to the said fund. (3) In no view are the claimant's brothers and sisters-german entitled to have the fund divided equally among them, they being not her only relations.

The Lord Ordinary ( Ormidale) pronounced the following interlocutors in the case:—

“19 th May 1870-The Lord Ordinary having heard parties' procurators, repels the objections to the multiplepoinding; finds the real raisers entitled to their expenses, including the expenses of this discussion; remits the accounts thereof when lodged to the auditor to tax and report; finds the nominal raisers liable only in once and single payment; holds the summons as a condescendence of the fund in medio, and appoints the claimants to lodge their condescendences and claims within ten days.

19 th November 1870.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, sustains the claim for Mrs Margaret M'Neillie or Comrie, No. 20 of process, and accordingly ranks and prefers her to the fund in medio; repels the competing claims, and decerns; finds the claimant Mrs Comrie entitled to expenses as against the other claimants; allows her to lodge an account thereof, and remits the same when lodged to the auditor to tax and report.”

Against this latter interlocutor the real raisers reclaimed.

Pattison, for them, referred to Williamson v. Gardiner, 17 Nov. 1865, 4 Macph. 66, and Scott v. Scott, 2 Macq 281.

Maclean for Mrs Comrie, the common debtor.

At advising—