Scottish Court of Session Decisions

This was an action at the instance of Mrs Elizabeth Wighton or Smith, wife of Alexander Smith senior, wright, Dundee, and Alexander Smith senior for his own interest, pursuers; against Alexander Gilroy, merchant, Dundee, John Cross, manufacturer there, and Joseph Grimond, flax and jute spinner and manufacturer there, as surviving and acting original and assumed trustees of the now deceased William Wighton senior, grocer, Dundee, acting under his trust-disposition and settlement, to which Mrs Mary Taws or Wighton, his wife, was also a party, dated 6th May 1858, and codicil thereto by him, dated 6th January 1863, both recorded in the sheriff-court books of Forfarshire on 7th August 1866; and against the said Mrs Mary Taws or Wighton, presently residing in the Montrose Lunatic Asylum, Montrose, and her curator bonis or other guardian, and the said Alexander Gilroy and Joseph Grimond, as trustees acting under a trust conveyance granted by her in their favour, dated 12th April 1866, for the interest of the said Mrs Mary Taws or Wighton, if she any has; and against Mrs Elizabeth Clara Barnes or Wighton, presently residing at No. 62 Charlotte Street, Tottenham Street, Tottenham Court Road, London, widow of the late William Wighton junior, wine and spirit merchant, Dundee, who was the son of the said William Wighton senior; and William Grant, contractor in Kirriemuir, as trustee, acting under a trust-disposition omnium bonorum granted by the said Mrs Elizabeth Clara Barnes or Wighton in his favour, dated 3d September 1868, for their interest,— defenders. The conclusions of the summons were as follows:—“Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session—(1) That the said William Wighton senior died intestate, so far as regards the succession to the fee of the residue of his estate, in consequence of the lapsing of the directions contained in his said trust-disposition and settlement, and that the defenders, the trustees of the said William Wighton senior, now hold the trust-estate for behoof of the representatives ab intestato, in heritage and moveables respectively, of the said William Wighton senior, subject to the burden of an alimentary provision in favour of the said Mrs Taws or Wighton, made in said trust-disposition and settlement: And more particularly (2) it ought and should be found and declared, by decree foresaid, that the pursuer, the said Mrs Elizabeth Wighton or Smith, as nearest lawful heir, both of line and conquest, of the said William Wighton senior, her brother, and of her nephew William Wighton junior, has the sole good and undoubted right and title to the residue of the heritable estate of the said William Wighton senior, as the same existed at the time of his death, under burden of a proportional part of said alimentary provision to Mrs Mary Taws or Wighton: And (3) it also ought and should be found and declared, by decree foresaid, that the pursuer, the said Mrs Elizabeth Wighton or Smith, as next of kin to the said William Wighton junior, has good and undoubted right to two-sixth parts of the residue of the moveable estate of the said William Wighton senior, under burden of a proportional part of foresaid provision: And (4) it ought and should be found and declared that the defenders, the said trustees of William Wighton senior, hold what may be found to be the whole of the residue of the heritable estate, or the sums representing it, if converted into money, and two sixth parts of the residue of the moveable estate of the said William Wighton senior, for behoof of the said pursuer, Mrs Elizabeth Wighton or Smith, until the death of the said Mrs Mary Taws or Wighton: And further, (5) the defenders, the said trustees of the said William Wighton senior, ought and should be decerned and ordained, by decree foresaid, to exhibit and produce before our said Lords a full and particular account of their whole intromissions with the trust-estate of the said William Wighton senior, in order that the interest therein of the pursuer, the said Mrs Elizabeth Wighton or Smith, may be ascertained, and may be declared and decerned for by our said Lords, as herein concluded for: And further, (6) the defenders, the said trustees of the said William Wighton senior, ought and should be decerned and ordained, by decree foresaid, to make immediate payment to the pursuer, the said Mrs Elizabeth Wighton or Smith, of the whole accumulations of free income which have arisen on what shall be found and declared to be her share of the residue of the heritable and moveable estate of the said William Wighton senior, which shall he found to have accumulated since the death of the said William Wighton senior, after satisfying the said alimentary provision of the said Mrs Mary Taws or Wighton: And (7) the defenders, the said trustees of the said William Wighton senior, ought and should be decerned and ordained, by decree foresaid, to make annual payment to the pursuer, the said Mrs Elizabeth Wighton or Smith, during the lifetime of the said Mrs Mary Taws or Wighton, of the whole free yearly income of what shall be found and declared to be the pursuer's share of the residue of the estate, heritable and moveable, of the said William Wighton senior, subject to deduction of a proportional part of the said alimentary provision to the said Mrs Mary Taws or Wighton.”

The facts of the case were as follows:—The pursuer, Mrs Elizabeth Wighton or Smith, is the only surviving sister and nearest lawful heir and next of kin to the deceased William Wighton senior, and also to his son, William Wighton junior. Mrs Mary Taws or Wighton is the widow of William Wighton senior, and is presently an inmate of Montrose Lunatic Asylum. She has no curator bonis, but in 1866, prior to her becoming insane,

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she executed a trust conveyance of all her property, and of all her rights and interests, in favour of Alexander Gilroy and Joseph Grimond. Mrs Elizabeth Clara Barnes or Wighton is the widow of William Wighton junior. In September 1868, being bankrupt, she executed a trust-disposition omnium bonorum in favour of William Grant, for behoof of her other creditors. The trust-disposition and settlement mortis causa executed by William Wighton senior, to which his wife was a party, disponed in favour of William Wighton junior, Alexander Gilroy, and John Cross, as trustees, his whole means and estate, heritable and moveable, which should belong to him at the time of his death, and specially the heritable subjects therein described, and he appointed his trustees to be his only executors; but declaring always that the deed was granted by him in trust for the purposes, and with and under the provisions, conditions, and declarations therein mentioned. By the third, purpose of the trust-disposition and settlement, the truster directed and appointed his trustees to lay out such portions of the yearly income of his trust-estate as they might think fit, and not less than 36 sterling yearly, for the purpose of alimenting and providing Mrs Mary Taws or Wighton, his spouse, in a comfortable and becoming manner during her life; and for this purpose he directed his trustees to arrange for her board and lodging in some respectable family, and to lay out and expend the foresaid sum yearly, with such addition as they might consider proper in paying her board, maintenance, lodging, and clothing, with what other aid or support his trustees might in their discretion consider necessary; these provisions in favour of Mrs Mary Taws or Wighton were declared to be purely alimentary, and were not to be diverted from the purposes intended on any account whatever. The provision thus made Mrs Mary Taws or Wighton accepted of in full of all terce of lands, half or third of moveables, and every other claim whatever which she could by law demand in case of her survivance. By the seventh purpose of the trust-disposition and settlement the truster gave the following directions as to the residue of his estate, viz.:—“Upon the death of the said Mary Taws or Wighton, and upon the youngest of my children attaining the age of twenty-one years complete, whichever of these events shall last happen, I direct and appoint my said trustees to make a fair and equal division of the residue and remainder of my trust-estate among my whole children, share and share alike; and declaring that, in the event of the death of any of my said children before the period of division, leaving lawful issue, such issue shall inherit the share which would have fallen to their deceased parent equally among them; and in the event of the death of any of my said children before the period of division, without leaving lawful issue, then, and in that case, their shares shall form part of my trust-estate, and shall be divided among the survivors of my said children and the issue of any of them who may have predeceased, in the terms above directed.” William Wighton senior died on 18th September 1865 and the trustees named accepted office, and entered upon the possession and management of the trust-estate, which was partly heritable and partly moveable. He was survived by Mrs Mary Taws or Wighton, his widow, and by one child, William Wighton junior, his other children, James and Robert, having predeceased him without issue. On 19th February 1866 William Wighton junior died without leaving lawful issue, and without obtaining service as heir to his father. The widow still survives. The pursuer is nearest and lawful heir of line and of conquest of both father and son. As next of kin of William Wighton junior, she was duly decerned and confirmed executrix-dative to him. With the exception of the residue of the moveable estate of William Wighton senior, the whole moveable estate of William Wighton junior has been realised and divided among those having right thereto. The annual payments made by the trustees of William Wighton for behoof of his widow since his death have not exhausted the yearly income of the residue of the trust-estate, and the surplus income has accumulated, and now amounts to a considerable sum. The pursuers averred that the income of the whole trust-estate amounted to about £280 per annum, and that about £120 only had been found by the trustees to be required for the proper maintenance of Mrs Mary Taws or Wighton. The whole other purposes of the trust have been fulfilled. The trustees now hold the residue to enable them to meet the provision during Mrs Wighton's lifetime, and the pursuers maintained that, subject to this provision, the whole of the residue, so far as it consists of what was heritable estate of William Wighton senior at the time of his death, and two sixth parts of the residue, so far as it consists of what was moveable estate of the deceased at the time of his death, belonged to the pursuer; three sixth parts, or one-half, of the moveable estate falling to the defender Mrs Elizabeth Clara Barnes or Wighton as jus relictœ, and one third of the remainder, or one sixth of the whole estate, falling to the defender Mrs Mary Taws or Wighton as mother of William Wighton junior, in terms of the Intestate Moveable Succession (Scotland) Act, 1855. The pursuers required the trustees to make payment to them of the accumulations of income, so far as effeiring to the female pursuer's share of the trust—estate, which were not required to meet the provision to the truster's widow, and also to make payment for the future of the free surplus of the annual income of the estate so far as effeiring to the female pursuer, after satisfying a proportional part of the provision to Mrs Mary Taws or Wighton; but the trustees declined to do this without judicial authority.

The pursuers pleaded—(1) The directions of the said William Wighton senior contained in his said trust-disposition and settlement as to the disposal of the residue of his estate having lapsed, the said William Wighton senior died intestate quoad the succession to the said residue, and his trustees now hold the same subject to the foresaid provision to his widow for behoof of his legal representatives in heritage and moveables respectively, according to the nature of the estate composing the said residue as at the time of his death. (2) The pursuer, the said Mrs Elizabeth Wighton or Smith, being the nearest and lawful heir of line and of conquest of the said William Wighton senior, is entitled, subject to the burden of a proportional part of the foresaid provision to his widow, to the fee of the whole of the residue in so far as it consists of heritage, or represents heritage, left by the said William Wighton at the time of his death. (3) The pursuer, as sole next of kin of the said William Wighton junior, is likewise entitled, subject to the foresaid provision, to two sixth parts of

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the residue of the moveable estate of the said William Wighton senior, (4) The pursuer is entitled to immediate payment of the accumulations of income in the hands of the said William Wighton senior's trustees, so far as these have arisen from the heritable estate, and from two sixth parts of the moveable estate of the said William Wighton senior. (5) The pursuer is further entitled to payment during the lifetime of the said Mrs Mary Taws or Wighton of that part of the said surplus income corresponding to the pursuer's interest in the said residue, after satisfying the provision to Mrs Wighton. (6) The defenders, the trustees of William Wighton senior, are bound to produce and exhibit a full and particular state of their intromissions with his estate, in order that the rights and interests therein of the pursuer may be ascertained. (7) The trustees are bound to hold the residue of the whole heritable estate, or what represents the heritable estate of William Wighton senior, and two sixth parts of the residue of his moveable estate, for behoof of the pursuer Mrs Elizabeth Wighton or Smith, until the death of Mrs Mary Taws or Wighton. (8) Generally, the pursuers are entitled to decree as concluded for, with expenses.

The defenders, William Wighton's trustees, pleaded: The defenders having no authority under the trust-deed to make the payments demanded by the pursuers, they are not bound to make such payments except under judicial authority.

The defenders, William Grant (Wighton's trustee) and Mrs Wighton, pleaded: (1) The main object of the truster being to benefit his children, his estate must be held to have vested in them as a class, and William Wighton junior being the last survivor of said class, was in right of the whole estate. (2) The widow of the deceased William Wighton junior is entitled jure relictœ to one-half of the residue of the trust-estate of William Wighton senior, in respect that on a sound construction of the trust-deed—first, the fee of the whole of the said residue vested at the death of the testator in his only surviving son, the said William Wighton; and second, that that right was moveable in his person. (3) Even if the first plea in law for the pursuer should be sustained, the annuity provided to the truster's widow being heritable in its nature falls to be charged against his heritable, and not against his moveable, succession.