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Cite as: [1873] ScotLR 10_470, [1873] SLR 10_470

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SCOTTISH_SLR_Court_of_Session

Page: 470↓

Court of Session Inner House First Division.

Wednesday, June 12. 1873.

Lord Mackenzie, Ordinary.

10 SLR 470

Mackenzie and Others

v.

Mackenzie's Trustees and Others.

Subject_1Mora
Subject_2Taciturnity
Subject_3Acquiescence.
Facts:

Held, mere lapse of time not a bar to widow's claim of jus relictœ. Circumstances in which claim held not barred by mora and taciturnity or discharged by acquiescence.

Headnote:

This was an action brought by three of the surviving children of the late Murdo Mackenzie, of
Page: 471↓
Dundonnell and Mrs Ross or Mackenzie, his wife, and, as such, heirs in mobilibus of their mother, against the sole surviving trustee and representatives of the late Hugh Mackenzie of Dundonnell, concluding for payment to them of their proportion of the jus relictœ due to their deceased mother at the date of the dissolution of the marriage between her and the said Murdo Mackenzie.

Murdo Mackenzie died in May 1845, survived by seven children and his wife Mrs Ross or Mackenzie. Mrs Mackenzie died in June 1856, survived by five children of the marriage between her and the said Murdo Mackenzie.

On 14th July 1838, the said Murdo Mackenzie executed an entail of his estate of Dundonnell in favour of the said Hugh Mackenzie, his eldest son, and the heirs whomsoever of his body, whom failing, the other heirs of tailzie therein specified, of the lands and estates of Dundonnell, and others therein described, but always under the conditions, prohibitions, provisions, and declarations therein set forth, reserving thereby to himself, however, full power and liberty, even although the said deed of entail should be recorded, to alter, innovate, or revoke the same, or to execute a new deed of tailzie and settlement; and further, reserving the whole effect of any trust-deed which might be executed by him for the purpose of making provisions for his younger children, or for other purposes.

Murdo Mackenzie further executed a trust-settlement, dated 5th March 1844, and codicil annexed, dated 1st April 1845, whereby he assigned, disponed, conveyed, and made over, to the said Hugh Mackenzie, his eldest son, and the now deceased Robert Warrand, his nephew (as well as to certain other persons who did not accept of the trust), and to the survivors and survivor of them, all and whatever bonds, personal and heritable, bills and mortgages, bank-receipts, debts, and sums of money, which belonged to him, or to which he should have right at the time of his decease, with power to sue for, uplift, and discharge the same; and also the rents of his whole lands and estates which should fall due and be payable at the first term of Martinmas after his death, but in trust only for certain purposes mentioned in the trust-deed.

By this deed the truster left considerable legacies to various parties, and, among others, to the pursuers of the present action. The following clause was also inserted in the deed, viz.:

“And should the funds hereby conveyed as aforesaid to my trustees be found, contrary to my expectation, insufficient for the above payments,—considering that in the entail which I have made of my lands and estate, I have reserved power to burden the same to such extent as I shall deem necessary with reference to provisions for my younger children, I hereby farther assign and convey to my said trustees the yearly rents of the whole lands and salmon fishings which I have purchased lately, belonging to the family of Cromertie, until all the aforesaid payments shall have been made and satisfied.”

There was no contract of marriage, either antenuptial or post-nuptial, between the said Murdo Mackenzie and his wife, the said Mrs Christy or Christian Ross or Mackenzie; and the said Murdo Mackenzie did not at any time, by deed inter vivos or mortis causa or otherwise, make any provision for his said wife in case of his predecease, nor did she ever renounce her legal claim of jus relictœ.

The said Hugh Mackenzie intromitted with and uplifted the whole personal estate (with the exception of a sum of about £34), including (1) a bond and disposition in security for £2000 over the estate of Millbank; (2) the rents of the estate of Dundonnell, payable at Martinmas 1845, and the rents of the lands and fishings acquired by his father from the family of Cromertie, and also the said jus relictœ due to his mother; and, after paying certain debts of the truster, and paying or setting apart the legacies and provisions bequeathed by the trust-deed, he appropriated the whole residue of the trust-estate, heritable and moveable, and applied the same for his own uses and purposes.

Mrs Mackenzie, on the decease of her husband, was entitled to one-third of the goods in communion in name of jus relictœ, but no payment was made to her during her lifetime, nor, since her death, to her children as her next of kin, and accordingly the present action was raised.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 24th January 1873.—The Lord Ordinary having heard the counsel for the parties, and considered the Closed Records in the conjoined actions, Finds that the late Murdo Mackenzie of Dundonnell died on 9th May 1845, survived by his wife, Mrs Christy or Christian Ross or Mackenzie, and by seven children of the marriage between them: finds that upon the dissolution of the said marriage one-third part of the goods then in communion between the said spouses vested in the said Mrs Christy or Christian Ross or Mackenzie as jus relictœ: Finds that Mrs Christy or Christian Ross or Mackenzie died in June 1856, survived by five of her said children, and that two of the said children predeceased her without issue: Finds that the claim now made for payment of the sum which vested in and belonged to the said Mrs Christy or Christian Ross or Mackenzie as jus relictœ;, and of the interest thereof since her husband's death, is not excluded or discharged by the trust-disposition and settlement of the said Murdo Mackenzie, dated 5th March 1844, or by payment to or acceptance by his children of the sums or legacies provided to them in said deed. And appoints the conjoined causes to be put to the roll with a view to further procedure.”

The defenders reclaimed, and pleaded, inter alia, (1) That the widow herself never made any claim for jus relictœ. (2) That the claim was excluded by lapse of time, or by mora, or by taciturnity on the part of the pursuers. (3) That the claim was excluded or discharged by payment to and acceptance by, the pursuers, of the legacies bequeathed them by their father. (4) That the whole of the free executry having been exhausted in payment of the truster's debts and bequests in accordance with the express provisions of the trust-disposition of 1844, and there being therefore no funds out of which the claim for jus relictœ could be paid, the claim must be held as excluded or discharged by the deed. (5) In the event of the claim being sustained, the defenders were entitled to take credit for sums spent in the maintenance of the widow by her son Hugh Mackenzie.

Authorities relied on by them— Hume v. Huntly, M. 2764; Robson v. Bywater, 8 Macph. 757; Pringle, 8 Macph. 622.

At advising—

Judgment:

Lord President—Murdo Mackenzie died in

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1845, leaving a widow and seven children. His eldest son, Hugh Mackenzie, succeeded under a deed which he himself had made. By the trust-disposition of 1844 he left legacies to his younger children, and to provide for payment of these legacies and his debts, he gave to trustees not only his whole personal estate, but also “bonds, personal and heritable, bills, mortgages, bank-receipts, debts, and sums of money which now belong to me, or to which I shall have right at the time of my decease, with power to them to sue for, uplift, and discharge the same, and also the rents of my whole lands and estates which shall fall due and be payable at the first term of Martinmas after my death.” If the funds thus conveyed are sufficient to pay the debts and discharge the legacies, and also to satisfy the claim of jus relictœ, there is no longer any difficulty. But the truster made a further provision in view of the possibility of the funds not being sufficient. He says—“and should the funds hereby conveyed as aforesaid to my trustees be found, contrary to my expectation, insufficient for the above payments,—considering that in the entail which I have made of my lands and estate I have reserved power to burden the same to such extent as I shall deem necessary with reference to provisions for my younger children, I hereby further assign and convey to my said trustees the yearly rents of the whole lands and salmon fishings which I have purchased lately, belonging to the family of Cromertie, until all the aforesaid payments shall have been made and satisfied.” Now it is very possible, and very probable, that Mr Mackenzie had not in view the legal provision for his surviving wife. He not only does not contemplate the legal provisions, but does not make any conventional provisions. That would not relieve from liability to pay the said jus relictœ. By acceptance of the trust, a legal obligation was undertaken by the trustees to pay the legacies and also the jus relictœ, and it is alleged that so far as the widow was concerned they failed in their duty. They made no provision whatever for her. She lived for eleven years, and does not seem to have claimed her jus relictœ. It is vain to say that that of itself extinguishes the claim, if made afterwards by her children: so that, if the claim is good, the pursuers are entitled to three-fifths of the whole sum. One objection to the claim is, that there are no funds; And it is said further that it is hard upon Hugh Mackenzie's representatives to have this claim brought up at so long a distance of time. But hardship alone won't do; lapse of time alone won't do. Something more is necessary to extinguish the claim. I can see nothing on the part of the widow or her representatives of the nature of a discharge of the claim. The accountant has brought out as free executry a sum of £7745, and if Hugh Mackenzie set apart one-third of that sum for the widow, that would have left £5,164 free executry to meet the payment of debts and legacies. But the trustees had funds beyond the executry. They had the £2000 contained in the Millbank Bond, and they were entitled to a half-year's rent of the estate of Dundonnell, under special provision of the trust deed, whatever that sum might amount to. It is probable that these sums were more than sufficient to meet the claims of the legatees, and that on the assumption that a sum was set aside to meet the claim of jus relictœ, and if so that sum remains, spent or unspent, in the hands of Hugh Mackenzie. If not, the widow's representatives are entitled to go against Hugh Mackenzie's estate and rents until a sum equal to the amount claimed. And there is no hardship in that, for so far as the claim was not set aside, Hugh is just locupletior. If he had been residuary legatee he might have had some ground for the plea that through the silence of the widow he had been lulled into the belief that what was unclaimed was his. But what was not claimed was not his, but belonged to his younger brothers and sisters. It is further alleged that Hugh Mackenzie did spend money in the maintenance of the widow. If so, he is entitled to state that against the claim, and therefore, while quite prepared to adhere to the judgment of the Lord Ordinary as it stands, it would be proper to reserve to the defenders their right to make out, if they are able, a case of set off.

Lord Deas—The first question is as to how matters stood at the date of Murdo Mackenzie's death in 1845. His settlements consisted of (1) the deed of entail of 1848. It is quite plain that that deed was a mere testamentary deed, leaving him free, notwithstanding the entail, to deal with the estates referred to therein as he should think proper. Then there was (2) the deed of 1848, conveying to trustees—[reads clauses of deed ut supra]. Apparently he left a widow, who was not mentioned in the deed. It is perfectly clear that she was entitled to demand jus relictœ in 1845, and if claimed it would have been her own. It is of no consequence whether there was sufficient left, apart from the heritable estate, to pay the legacies and the jus relictœ in addition, because the effect of the entail deed was to make the estate in it as liable as any of his property. The widow having died in 1856, her children, as her representatives, now claim the amount of her jus relictœ over and above the legacies bequeathed to them, and the only answer, apart from what happened after Murdo Mackenzie's death, is that the testator did not know of the legal provision to which his widow was entitled. The presumption is that he had that in view. But it is no matter whether he had or had not. The deed was for payment of all obligations, and it would be a most dangerous thing to go against the distinct terms of a deed on that ground. Then what has taken place since the death of Murdo Mackenzie? It is quite plain that mere lapse of time can't operate a discharge of the right. The only other thing is that certain payments have been made to the widow by her son. That is not sufficient either, unless you can hold that it amounts to an implied contract that his mother was not to claim her jus relictœ. But length of time alone will not bring it up to that. The case of Bywater was very different. The judgment of the Lord Ordinary seems to me perfectly well founded. I agree entirely in recommending the reservation proposed by your Lordship.

Lord Ardmillan—In the case of Bywater it was pointedly declared that mere lapse of time was insufficient, and that it was only sufficient when taken in connection with other circumstances. In the case of Pringle, also, taciturnity was coupled with other circumstances.

Now, here I don't see my way to sustain lapse of time as sufficient, and I cannot say that I see any additional circumstances sufficient to bring it up to implied discharge or abandonment. I have only to add, that if Hugh Mackenzie advanced

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money to his mother, give him all credit for these advances, but they will never found a discharge.

Lord Jerviswoode concurred.

The Court pronounced the following interlocutor:—

“Adhere to the said interlocutor, but under reservation of the claim of Hugh Mackenzie's trustee to set off against the amount of the jus relictâ any sums which he can show that Hugh Mackenzie expended on the maintenance of the widow during her viduity”

Counsel:

Counsel for Pursuers— Millar Q.C. and Hunter. Agents— Skene, Webster, & Peacock, W.S.

Counsel for Defenders— Fraser and Duncan. Agents— Murray, Beith, & Murray, W.S.
1873