Scottish Court of Session Decisions

By a trust-settlement Mr John M'Call, inter alia, directed his trustees to pay the sum of £1000 to each of the children of his sister Mrs M'Kerrell who should be alive at the death of the truster's widow. Mr M'Call died 18th October 1833.

In November 1838 Mary M'Kerrell, one of the children of the truster's sister Mrs M'Kerrell, was married to the late Donald Smith. By antenuptial contract she assigned to trustees her whole right and interest in the succession of her uncle John M'Call, as also her whole other means and estate to which she might succeed during the subsistence of the marriage, excepting her right and interest in the succession of her father. It was provided that the whole estate thus conveyed, together with £2000 which her father had bound himself to pay to the trustees, should be held by the trustees for her liferent use allenarly, and for the children of the marriage in fee. The trustees were directed to pay to her during her life, and to her husband if he should survive her, the free annual proceeds of the estate vested in them, under the declaration that the liferent in her favour should be purely alimentary, and that the same should not be assignable by her nor affectable by her debts and deeds. Upon the death of the

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longest liver of the spouses, the trustees were to divide the estate among the children of the marriage in such proportions as Mary M'Kerrell might direct. The assignation was intimated to M'Call's trustees on 31st December 1869.

Mr Donald Smith died on 1st September 1855, survived by his widow and four children, all of whom are still alive. In November 1869 Mrs Donald Smith, on the occasion of her eldest son Alexander Smith's marriage, assigned her right to the £1000 to his marriage-contract trustees.

It was expressly stated in this Special Case that at this time Mrs Donald Smith had no recollection of the terms of her own marriage-contract, and believed that she was entitled to dispose of the £1000 as she thought fit. The assignation to Alexander Smith's marriage-contract trustees was intimated to M'Call's trustees on the 26th December 1870, about a year subsequent to the intimation of the assignation to the trustees of Mr and Mrs Donald Smith.

Mrs M'Call, the widow of the truster, died 8th February 1871. and a question arose to which set of trustees the legacy was payable. A Special Case was presented, to which the parties were—(1) M'Call's trustees, (2) Mrs D. Smith, (3) Mr and Mrs D. Smith's marriage trustees, (4) Mr and Mrs A. Smith's marriage trustees. The question submitted to the Court was, Whether Mr and Mrs Donald Smith's marriage-contract trustees or Mr and Mrs Alexander Smith's trustees were alone entitled to receive payment of the legacy of £1000?

Kinnear for Mr and Mrs Donald Smith's trustees.

Johnstone, for Mr and Mrs Alexander Smith's trustees, did not dispute that effect must be given to the assignation to Mr and Mrs Donald Smith's trustees, as first in date and first intimated, but he argued that the assignation of the £1000 to her son's trustees by Mrs Donald Smith might be regarded as an exercise of the power of apportionment given her by her own marriage-contract. She was entitled to pass from her own liferent for an onerous cause.

At advising—