Scottish Court of Session Decisions

This Special Case was presented by—(1) the trustees of the late Andrew Wallace; (2) Alexander Innes, and (3) Janet Wallace or Walkinshaw, and her brother and sisters interested in the succession of Andrew Wallace.

The late Andrew Wallace, sometime rope manufacturer in Leith, died on the 11th November 1869, leaving a trust-disposition and settlement dated 19th August 1862, and registered 17th November 1869. The purposes of the trust were—(1) payment of debts, &c., and the expense of executing the trust; (2) payment of a weekly allowance to the truster's wife, Isabella Dickson or Wallace, should she survive him; (3) that the trustees should make over certain articles to Andrew Wallace, one of the truster's nephews; (4) that the trustees should, as soon as convenient after the truster's death, sell and dispose of his shop in Bernard Street, Leith, and the stock therein; and (5) that, on the death of his wife, the trustees should divide the residue of his means and estate equally, share and share alike, between Andrew Wallace, &c., his nephews and nieces, and their heirs and assignees; and in regard to his household furniture and effects, he directed that the trustees might allow his wife the use thereof as long as she occupied a house of her own, but that in case of her being resident in the House of Refuge, or in a public or private Asylum, that the said household furniture and effects should be sold, and form part of the residue of his estate, to be divided as mentioned in the fifth purpose of the trust. The truster was survived by his wife, and also by all his nephews and nieces. His moveable estate at the date of his death amounted to £437, 14s. 7d., and his heritable property consisted of some small dwelling-houses in Leith, which yielded a gross annual rental of about £33, 15s. At the date of the execution of the said trust-deed, the only heritable property possessed by the truster was a lease of a shop in Bernard Street, Leith, which is mentioned in the trust-deed as “my shop in Bernard Street.” This lease was assigned by the truster himself some years before his death, and the houses in Baltic Street above mentioned were acquired by him subsequently to the execution of the trust-deed. The truster's niece, Elizabeth Wallace, mentioned in the trust-deed, was married to Alexander Innes, junior, house-carpenter, Aberdeen, on 10th June 1870. She died on the 21st May 1871, without issue, and intestate. The parties were agreed that a right to a seventh part of the residue of the trust-estate vested in Mrs Innes on the truster's death. The parties were further agreed that under an antenuptial-contract of marriage, Mr Alexander Innes, the second party, was entitled to all the moveable property which vested in his wife during the subsistence of the marriage; but that he was not entitled to the heritage in which she had vested right. The heir of conquest of Mrs Elizabeth Wallace or Innes was her immediate elder brother, James Wallace. The truster's widow died on the 13th August 1871, and the trust should be wound up in terms of the fifth purpose.

The questions of law which the parties submitted for the opinion and judgment of the Court, were—

“1. Are the first parties entitled or bound under the trust-deed to sell the subjects in Baltic Street?

“2. Does the share of the said subjects, or of the price thereof, which vested in Mrs Innes, fall as moveable estate to her husband, the second party?

H. J. Moncrieff for the first and second parties.

Balfour for the third parties.

Page: 555↓

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