Scottish Court of Session Decisions

The summons in this suit, at the instance of Colonel Harrington Ashley Trevelyan, against Mrs E. L. Simcoe or Trevelyan, widow of the late Lieutenant General Willoughby Trevelyan, and sole executrix appointed under the will of the said Lieutenant General Trevelyan, dated 9th January 1871, and registered on 10th February 1872, concluded that the defender, “as executrix foresaid, ought and should be decerned and ordained, by decree of the Lords of our Council and Session, to exhibit and produce before our said Lords a full and particular state and account, duly vouched and authenticated, of the whole moveable goods, gear, and effects which the said deceased Lieutenant-General Willoughby Trevelyan was possessed of, or had right to at the time of his death, and of the intromissions of the defender therewith, so that the free balance thereof remaining due after all legal deductions therefrom have been paid or satisfied, may appear and be ascertained; and the defender, as executrix foresaid, ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £5000 sterling, or of such other sum as shall appear and be ascertained by our said Lords to be due by the defender to the pursuer as the amount of the pursuer's legitim, bairns part of gear, or legal share of the moveable estate which belonged to the said deceased Lieutenant-General Willoughby Trevelyan, together with interest thereon at the rate of 5 per cent. per annum from the 3d day of July 1871, and until payment, or in the event of the defender failing to produce an account as aforesaid, she, as executrix foresaid, should be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £5000 sterling, which shall in that event be held to be the amount of the pursuer's legitim, together with interest thereon at the rate and for the period foresaid.

The pursuer stated that the deceased Lieutenant-General Willoughby Trevelyan, the pursuer's father, died on the 3d day of July 1871. He was the proprietor of the lands and estate of Newfargie, situated in the counties of Fife and Perth, and resided at the mansion-house which he had erected on the said estate. He was a domiciled Scotsman at the time of his death. He was twice married—firstly, to the pursuer's mother, Anne Mary Astley, and secondly, to the defender, Mrs Elizabeth Lethbridge Simcoe or Trevelyan, who survived him. The pursuer, who was born on the 10th day of March 1835, is his only child. Lieutenant-General Trevelyan left a will or deed of settlement, dated the 9th day of January 1871, whereby he conveyed his whole estates, heritable and moveable, in liferent to his wife, the said Mrs Elizabeth Lethbridge Simcoe or Trevelyan, but only on the conditions, and for the ends, uses, and purposes therein mentioned, and nominated and appointed her his sole executrix during her life. The said will or deed of settlement provided for the distribution of the testator's estate, real and personal, but it does not contain any provision in favour of the pursuer. The defender accepted of the office of executrix conferred on her by the said will or deed of settlement, and has intromitted with, and taken possesion of, the estate of the said deceased Lieutenant-General Willoughby Trevelyan. The said deceased Lieutenant-General Willoughby Trevelyan having been survived by his wife, and the pursuer being his only child, the amount of his claim of legitim is one-third part of the free moveable estate of which his father died possessed, in the event of the defender not having renounced or accepted a sum in full of her claim for jus relicttœ, or, in such event, one-half of the said moveable estate.

In answer, the defender stated that General Trevelyan was born in England. His domicile was English at the time of his marriage with the pursuer's mother in 1830, and with the defender in 1859, and it was not till 1861 that he came to reside in Scotland. He was not at the date of either marriage possessed of any Scotch estate, nor did he become possessed of any such until the year 1861, long after the pursuer had been forisfamiliated and provided for. That by antenuptial contract or indenture of marriage in the English style, entered into in England on 24th December 1830 between the pursuer's father and mother, the former conveyed the sum of £5000, and the latter the sum of £6167, 3s. consols, to certain persons therein designated, in trust for behoof of the children of their marriage, on the death of the survivor of them. Of this marriage the pursuer is the only child, and at the death of his father on 3d July 1871, the funds settled as aforesaid became payable to and have been received by him. At the time of their marriage the father and mother of the pursuer both had their domicile in England. By indenture of marriage, entered into in England on 10th September 1859, between the pursuer's father and the defender and various other parties, the pursuer's father conveyed to trustees various sums invested in Russian bonds and English railway shares and debentures, amounting in all to £5264, with a direction to pay the annual proceeds thereof to the extent of £100 yearly to the defender from the time of her father's death till his own death, and the balance to himself; and if there was no issue of the marriage, to pay the whole annual proceeds on his death to the defender; and after her death, to hold it for behoof of his executors, administrators, and assigns. There has been no issue of the marriage. The defender's father died many years ago; but the defender has not received any part of the yearly allowance settled upon her, it having been paid to General Trevelyan. The defender has survived her husband; and under his settlement, of date 9th January 1871, having been appointed sole executrix during her life, has aecepted of the office, and entered upon the administration of the funds. The above mentioned indenture of marriage was prepared and executed in English form; and all the parties to it were domiciled in England. By will or deed of settlement, dated 9th January 1871, and registered in the Books of Council and Session on 10th January 1872, General Trevelyan conveyed to the defender his whole means and estate, heritable and moveable, for her liferent use allenarly. The said deed contains certain directions in regard to General Trevelyan's burial, payments of expenses and debts, management of the property, &c.; bequeaths to the defender the sum of £200, and the money investments settled on her in liferent in her marriage-contract, and appoints her sole executrix during her life. The said deed nominates certain parties as trustees after the defender's death, who are directed to hold the balance of the trust-estate, in so far as not disposed of in the defender's favour, for behoof ultimately of certain heirs in the order therein specified, and failing them, for behoof of the Scottish Episcopal Church. The only reference made by the said deed to the pursuer is as follows: “And

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I desire to note that my son, Colonel Harrington Astley Trevelyan, has been already amply provided for by the marriage-settlement with his late mother and by the value of his commissions in Her Majesty's Hussars.”

In statement second on the record the defender, with reference to the law of England, averred that according to the law of England the provisions made in the foresaid marriage-contract or indenture in favour of the issue of the marriage, operated as a full discharge of all legal or other claims which the issue so provided for could prefer against the succession of their parents, or in respect of the death of either of them. The pursuer has accepted of these provisions, and by so doing has discharged all other claims against the estate or succession of his deceased father.

The pleas in law for the pursuer were:—“The pursuer being the only child of the deceased Lieutenant-General Willoughby Trevelyan, he is entitled to legitim from and out of the moveable estate of his said father. The claim of legitim, being a debt due from the estate of the deceased Lieutenant-General Willoughby Trevelyan, the defender, as his executrix, is liable therefor. In the circumstances above set forth, the pursuer is entitled to decree of count, reckoning, and payment against the defender as concluded for.”

The pleas in law for the defender were:—“The whole of General Trevelyan's moveable estate has been validly conveyed and apportioned by his deed of settlement in 1871, and that to the exclusion of the pursuer. The pursuer's claim to succeed to part of the moveable estate of his father falls to be determined by English law, and according to the just construction of the marriage indenture of 1830, and his whole claims in the action being thereby excluded, the defender is entitled to absolvitor. The pursuer's claim of legitim is excluded, in respect of the marriage indenture of his parents, and of his father's deed of settlement in 1871. and of his having been forisfamiliated and provided for in lieu of legitim before his father had acquired a Scotch domicile, or on one or more of these grounds. Esto, the pursuer is entitled to legitim, his claim is satisfied to the extent of the outlay and advances on his behalf by General Trevelyan, and his claim of interest is excessive.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 18th July 1872.—The Lord Ordinary having heard parties' procurators, and considered the closed record and productions: 1st, finds it admitted that the pursuer's father, the late General Trevelyan, was a domiciled Scotsman at the time of his death, and that, by the will or deed of settlement executed by him in January 1871, he did not make any provision in favour of the pursuer: 2d, finds in these circumstances in point of law, (1.) That the pursuer, as the only child of his father, is entitled to legitim out of the free moveable estate of which his father died possessed; (2.) That the pursuer is not barred from claiming legitim by the terms of the contract of marriage entered into between his father and mother in 1830; and (3.) That in a question with the defender the pursuer is not bound to collate, or impute in satisfaction of his legitim the provisions in his favour contained in that marriage-contract, or any outlay or advances made to him by his father, of the nature set forth in the defender's statement of facts. Therefore to that extent repels the defences, and appoints the case to be put to the roll, that an account may be taken of the amount of the free moveable estate of General Trevelyan at the time of his death, and reserves in the meantime all questions of expenses.

Note.—As the late General Trevelyan was a domiciled Scotsman at the period of his death, the main questions here raised must, it is thought, be disposed of according to the law of Scotland, in compliance with the well-established rule, that all questions of succession to moveable estate are regulated by the law of the domicile of the party whose succession is in question.

Now it is not alleged that there has been in the present case any express written discharge of his legitim by the pursuer; and the Lord Ordinary did not understand it to be contended, on the part of the defender, that if the question of the pursuer's right to legitim had turned upon the terms of the will executed by General Trevelyan in 1871, there would have been any good grounds in law for resisting the pursuer's claim. Neither did the Lord Ordinary understand it to be contended, and he does not think that there are any grounds for holding that there has been, in the circumstances of this case, any such for is familiation of the pursuer—in the sense in which the term is used in the law of Scotland—as was calculated to operate a discharge of the pursuer's right to legitim. Ersk., iii., 9, 23. But it was maintained—(1) that the claim now made was excluded, in respect of the provisions of the marriage-contract entered into between the pursuer's father and mother in 1830, which ought, it was said, to be construed by the law of England; and (2) that, assuming the pursuer to be entitled to legitim, the claim has been satisfied, and is excluded to the extent of the advances alleged to have been made by his father on his behalf, in the purchase of commissions in the army, and towards payment of his debts.

1st. The marriage-contract or indenture on which the first of these pleas is rested was not in process when the case was debated. It has, however, since then been produced; but after examining its provisions the Lord Ordinary has been unable to find any of them which can be held to import a discharge of the pursuer's claim, or of any other legal rights which might accrue to him, as one of the children of the marriage. The case must therefore, it is thought, be ruled by the decisions in the cases of Lord Chandos, 16th August 1836 ( 2 S. and M'L., p. 377), and Keith's Trustees, 17th July 1857; the latter of which seems to be more specially in point. Because, while the deed was an English contract, executed between parties resident in England, where it was alleged that Lord Keith was domiciled at the time, the Court do not seem to have considered it necessary to direct any inquiry as to the domicile—thereby implying that in such a case they did not consider the ascertainment of the question of domicile at the date of the execution of the contract to be essential for the disposal of the case.

2nd. With reference, again, to the sums sought to be charged against the pursuer in name of outlay or advances for commissions and to pay debts, it appears to the Lord Ordinary to have been settled in the case of Nisbet's Trustees, March 10, 1868, following that of M'Dougall, January 31, 1804, (M. App. “Bankrupt,” No. 21), that such advances cannot be claimed as debts except where an obligation for payment has been taken at the time, and the advances have thus been constituted and kept

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up as debts, which is not here alleged to have been done. While, therefore, claims of that description were allowed as against the eldest son in Nisbet's case, they were allowed not as sums claimable in name of debts, but on the footing that they were advances, which, in a question inter liberos, required to be collated in settling the legitim. The doctrine of collation among children, however, has no application here; as the question is raised not with children, but with a widow under a general settlement; with whom it appears to be settled that a child cannot be called on to collate. Stair, iii, 8, 46; Ersk. Principles, iii, 9, 10; Keith's Trustees, ut supra.

In the view which the Lord Ordinary thus takes of the law applicable to the case, he has seen no sufficient reason for allowing the defender a proof as to the meaning and effect of the marriage-contract of 1830 according to the law of England; because it is not alleged that the marriage-contract contains words of technical import in the law or practice of England which can only be construed by those who are conversant with English law. It is for this Court therefore to put its own construction on the deed, as was done in the case of Thomson's Trustees, 18th December 1851. as well as in the cases of Lord Chandos and Keith's Trustees. And as the advances made to the pursuer by his father are not of a description which can, in the opinion of the Lord Ordinary, be imputed in satisfaction of the pursuer's claim, he has not deemed it necessary to allow the defender a proof as to the amount of those advances before disposing of the case.”

The defender reclaimed.

Authorities cited—Stair, iii, 3, 45; Fisher, 7 D. 129; Keith's Trustees, 19 D. 1040; Lord Chandos, 2 S. and M'L., 377; Nisbet's Trustees, March 10, 1868; Phillimore, J. L., 4, 311: Hogg v. Lashley, 3 Paton's App. 247.

At advising—