Scottish Court of Session Decisions

This was a Special Case submitted for the opinion and judgment of the Court by (1) the trustees of the late John Sutherland, fishcurer, Greenigoe, near Wick; (2) by Mrs Sutherland or Clarkson, Robertson Place, Leith Walk, Edinburgh, his daughter; (3) by the widow and eldest son of the deceased (John); (4) by the youngest son George.

The truster died in May 1856, leaving heritable estate worth £850, and free moveable estate to the amount of £2000. He was twice married, and was survived by his second wife, one daughter of his first marriage (now Mrs Clarkson), and by three sons of his second marriage, John, Alexander, and George. By his trust-disposition and settlement he directed his trustees inter alia, “when the same can be conveniently done, to divide, pay, assign, and dispone the same accordingly, it being distinctly understood that my wife shall have the same share as one of my children; declaring that, in the event of any one of my children predeceasing me, or dying without lawful issue, before receiving his share under this trust, the share of such child shall be divided between my wife and my other children, equally amongst them, share and share alike; and declaring further, that in the event of my eldest surviving son, or his heirs, quarrelling this disposition and claiming right as heir to my heritage, he or they shall not have any right whatever to any share or portion of my moveable estate, and he is hereby in that case expressly excluded therefrom, and my trustees shall divide the same amongst my wife and other children.” His will was, in so far as regarded the heritage, reducible ex capite lecti. The heritage was managed by trustees until the eldest son came of age, and the free rents were lodged in bank by them, and his board and education defrayed therefrom. When he came of age, in May 1874, John repudiated the settlement, and elected to take the heritage as heir-at-law; and the trustees thereupon allowed him to take possession of the heritage and paid him the balance of the rents in their hands, without requiring him to reduce the will. In June 1857, the widow and daughter of the deceased, under an agreement between them, each got payment from the trustees of a fourth share of the moveable estate, the other two fourths being retained and managed by the trustees for behoof of the other two sons, not yet of age. Alexander died in May 1872, aged nineteen years, without issue, unmarried and intestate, no portion having been handed over to himself, and the balance of his one-fourth share amounted to about £500. In these circumstances, the Court was asked to say—(It Did this share vest in Alexander before his death? and (2) to whom and in what proportions did it fall to be paid?