Scottish Court of Session Decisions

This was an appeal against an interlocutor pronounced by the Sheriff of Forfar ( Heriot) in an action at the instance of Andrew Douglas, merchant, Dundee, eldest son of the late Thomas Douglas, Rock Villa, Broughty Ferry, against his younger brother James Earl Douglas, the sole executor and universal disponee and assignee of his father under his will of 4th August 1869. The summons concluded for payment of legitim and production of all vouchers, &c., necessary to the determining thereof. Mr Thomas Douglas was twice married, the pursuer and defender respectively being the only issue of the first and second marriages. The father died on 13th March 1875, predeceased by both his wives, and leaving considerable personal estate besides the villa and heritable property in Dundee.

In the case of the first marriage there was a post-nuptial contract of marriage, dated 31st December 1834, by which, inter alia, the spouses assigned and disponed their whole estates and effects to the husband, should he survive his wife, and to the pursuer, provided he was twenty-one years of age at the predecease of his mother, in the proportion of two-third parts to

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the husband and one-third to the pursuer; also, it was declared that in case the husband should within six months after his wife's death make payment to the pursuer, if he was then twenty-one years of age, or to the trustees therein named if he was under that age, of £800 in lieu of the pursuer's third part, then the whole of the subjects should belong to the husband solely and absolutely, and the same were thereby assigned and disponed to him, his heirs and assignees whomsoever, conditionally always on his paying the said sum as aforesaid. It was also declared that the provisions therein contained in favour of the pursuer should be accepted by him as in full of all bairn's part of gear, legitim, portion natural, executory, and everything which he could ask, claim, or demand by and through the death of the first deceaser of his father and mother. On the occasion of the second marriage a mutual deed of settlement was entered into, on 8th March 1851, and one of the purposes was to pay £800 to the pursuer under the said postnuptial contract, if the same was not settled by him in his lifetime. Another purpose of the settlement was that at the expiry of the said Thomas Douglas' wife's liferent, or as soon thereafter as possible, his trustees should pay to the pursuer a legacy of £600 over and above the said sum of £800 before specified, and which sums were, and should be, in full of all claims of executry, legitim, or other legal claims whatsoever, competent to him by and through the decease of his said mother, or by or through Mr Douglas' decease.

The late Mr Douglas left two testamentary deeds, by the later of which, dated 4th August 1869, and recorded 20th March 1875, he disponed and conveyed to the defender his whole means and estate, and nominated and appointed him sole executor. This will revoked all previous wills; but the prior deed, dated 9th July 1860, was to the same effect, save that it was in favour of trustees until the defender should attain majority, which he had done before the date of the second deed. The latter will, inter alia, contained the following clause:—“From my affection for my son James Earl Douglas, afternamed, and having already made provision for my other son Andrew Douglas, do hereby give, grant, assign, and dispone,” &c. And the prior deed contained the following clause to the same effect:—“ Fourthly, In respect that I have already made provision for my other son Andrew Douglas, I direct my trustees,” &c.

Soon after Mr Douglas's death the pursuer made a claim for legitim, and, raising the present action, used arrestments to the amount of £5000. The defender admitted legitim to the amount of £1662, 18s. 9d.

The pursuer's pleas were to the following effect—“(1) Right to legitim as a lawful child. (2) There being no widow and no other children, the pursuer's legitim is one-half of the estate, seeing that the whole legitim falls to him, the defender having been forisfamiliated, and received provisions in full satisfaction of his legitim. In any view, in order to participate, the defender must collate. (3) The defender being universal disponee is not entitled to share in legitim. (4) The amount of the pursuer's legitim cannot be diminished or prejudiced by any free gift or other gratuitous payment or conveyance made by his father to the defender, whether inter vivos or mortis causa. (5) The pursuer is entitled to the benefit of collation both in heritage and in moveables received by the defender from his father, whether by deed inter vivos or mortis causa.” The defender pleaded, inter alia—“(2) Legitim being in any case a personal claim, and only payable and ascertainable after all debts and funeral and executry expenses are satisfied, and the defender, as executor foresaid of his deceased father, being entitled by law to, and bound to, await a period of six months from the day of the deceased's death within which to settle all claims, and when all claims will be settled and the free estate known, the present action is incompetent. (4) The sum out of which legitim is payable is the personal estate as at the date of the deceased's death (irrespective of, and not including, free gifts and others bestowed on the defender by the deceased), and that being as shown by the state herewith produced, the pursuer is entitled to decree for the one-fourth shown in the state, and to no more. And the defender is entitled, quoad ultra, to be assoilzied, with expenses.”

The Sheriff-Substitute ( Cheyne) on 9th November 1875 granted a diligence for recovery of all documents tending “to instruct (1) advances of money or payments made by the deceased Thomas Douglas, pursuer's and defender's father, or on his behalf, to or on behalf of the defender; and (2) the particulars and value of the moveable estate belonging to the said Thomas Douglas at the date of his death.” And to his interlocutor added the following note:—

“ Note.—It will be gathered from my not having granted so wide a diligence as was moved for by the pursuer that I have found myself unable to adopt his contention that the defender is bound to collate provisions of heritage that he may have received from his father (see Ersk. iii. 9, 24; Stair, iii. 8, 46; and More's Notes, 353; Buccleuch v. Tweeddale, 1677, M. 2369; Marshall, 1829, 8 S. 110; M'Laren on Wills, i. 157, note). Upon the other questions raised it is, as it seems to me, impossible to give any opinion at present. The difficulty in cases like the present lies not so much in saying what is the law (for the law of collation appears to be tolerably plain) as in interpreting the facts, so as to say whether particular advances fall within the scope of the law. It is necessary, therefore, to ascertain ante omnia (a) what advances the defender got from his father in his lifetime, and ( b) on what footing they were made.”

A reference to Mr Douglas' books shewed certain entries alluded to and explained by the Sheriff in an interlocutor of 28th February 1876, finding the true nett value of the estate to have been £6740, whereof one-half, or £3370, is in the circumstances as stated, the legitim. The other findings were as follows:—“Finds that there is evidence in process to establish that the defender received from his father, the deceased, during his lifetime, sums of money exceeding in amount the whole legitim fund, which sums he is, in a question with the pursuer, the deceased's only other child, bound to collate or impute towards legitim: Finds therefore that his claim to legitim must be held to have been satisfied, and that the pursuer is entitled to the whole legitim funds.”

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The note to the interlocutor was in these terms:—

“ Note.—Dismissing the unimportant objections stated by the defender to Mr Moody Stuart's audit of the executry accounts, with the remark, in regard to the first of them, that the action to which it refers was in my opinion an unnecessary and vexatious proceeding, the expenses of which the defender may justly be left to pay out of his own pocket, I pass at once to what are really the substantial questions in the case, viz., whether and to what extent the defender is bound to collate the large advances which he admittedly received from his father during his lifetime. It will, however, be unnecessary for me in the simple view which I take to deal with several of the points raised by the pursuer on this branch of the case, and I may confine my remarks to the cash advances, amounting to £6000, referred to at the top of p. 2 of Mr Moody Stuart's report. As to these, the question comes to be, whether the mode in which they are entered in the deceased Mr Douglas' ledger (for the defender offers no evidence upon the point except his own oath, which it need hardly be said is inadmissible) is sufficient to establish that it was the deceased's intention that they or any of them should be in addition to legitim, and so exempt from collation. Now, I think it might with some plausibility be argued that the way in which the advance second in date (viz., the £1000 credited to defender under date 31st December 1866) appears in the ledger suggests that so far from the deceased intending it as a prœcipuum over and above legitim, he intended it to be an advance towards the defender's portion or share of legitim, for he describes it as a sum ‘allotted for his ( i.e. defender's) business;’ but be that as it may, it seems to me that no higher inference can be drawn from the fact that the deceased speaks of one of the advances as ‘a gift,’ and of the other two as ‘free gifts, than that he did not intend them to be treated as loans of which repayment could be demanded; and accordingly I hold that there is nothing to take any of the three advances out of the general rule, according to which advances made by a father to his son in his lifetime are in a question of legitim subject to collation. But if I am right in that, then, as the advances in question exceed the amount of the legitim fund, the legal result is that the whole of that fund falls to the pursuer, and as he cannot, in my opinion, ask or get more than this, it becomes unnecessary to consider the question raised as to the liability to collation of the value of the harbour shares, or the question whether in collating the advances interest is to be added? The pursuer's agent, indeed, put his case higher than this, and argued, that as the defender had chosen to claim legitim, he must throw into the legitim fund the whole of the provisions received by him in his father's lifetime, no matter what their amount; and that the pursuer was entitled to decree for one-half of the fund so formed (which half would, of course, exceed one-half of the free executry); but such a view seems to me untenable, and indeed extravagant. The legitim fund is a fixed quantity. It is one-third or one-half, according to circumstances, of the free executry, and no claimant can possibly get as legitim more than that. The doctrine of collation only operates to regulate the distribution of the legitim fund (which otherwise would be divided among those entitled to rank upon it in equal shares), and the result of its being found—as has happened here—that one of the claimants has received by anticipation provisions exceeding in amount the whole of the legitim fund, is simply to exclude him from any share of it, and to leave it to the other claimant or the other claimants, as the case may be. See Kay v. Kay, 12th July 1844, 16 Jur. 550, and per Lord Curriehill in Keith's Trs. v. Keith, 17th July 1857, 19 D. 1066.”

The defender appealed against both these interlocutors, but on 15th April 1876 the Sheriff ( Maitland Heriot) adhered, adding to his judgment this note:—

“Although the sums involved in this case are considerable in amount, the Sheriff thinks that there is not much difficulty as to its disposal.

The defender, who is the younger brother, got some heritable property conveyed to him by his father. The question, whether the pursuer is entitled to have that heritable property taken into account in fixing the amount of his legitim must be answered in the negative. It may be that an heir in heritage cannot claim a share of the legitim fund without taking into account the heritage which he has got as heir; but the defender got no heritage as heir; and, as stated by Erskine, iii. 9, 25, ‘where a land estate or an heritable right is provided to a younger child, he is not bound to collate it.’

Then as to the moveable estate left by the deceased, it falls in this case to be divided into two parts—(1) the dead's part, and (2) the legitim. As to the first of these—the dead's part—there seems to be no room for any dispute. The defender is entitled to the whole of it, in respect of the testament (No. 17 of process) executed by his father. As to the second of these—the legitim—it is now admitted that the pursuer is entitled to a share of the legitim fund, notwithstanding the terms of the testament, No. 17. The question next arises, whether the defender be entitled to a share of this legitim fund? He admits that he got from his father during his life three sums at least, viz.—£3000, £1000, and £2000, making together the sum of £6000. In such circumstances the Sheriff considers that, looking to the amount of the legitim fund in this case, the defender is excluded in respect of such gifts from claiming any share of the fund, and that the pursuer is entitled to the whole of it.

“But, then, the pursuer contends that the above three sums must be reckoned as debts due by the defender to his father's estate, and that they must be included in the executry estate. But looking to the terms of the entries in the book (No. 20 of process) kept by the deceased, the Sheriff cannot take that view. The accountant reports that that book ‘is all holograph of the deceased.’ That statement is not contradicted or disputed by either pursuer or defender in either of their objections to the report, Nos. 69 or 79 of process. The Sheriff therefore assumes the statement to be correct in point of fact. Let us see the terms of the entries—‘1865, Deer. 25. By gift to him (my son James, payable as he requires it) £3000, say Three thousand pounds. J.D.’ Then at a part of the book kept under the name of ‘James E. Douglas,’ occur the following entries—‘1866, Dec. 31. By allotted for his business, ‘free gift £1000;’ ‘1868, Deer. 31. By given over as free gift, £2000.’ The Sheriff cannot in such circumstances regard these sums as debts due by the defender to his father, to be accounted for. The deceased evidently intended them not as loans but as gifts.

“With reference to the Dundee Harbour assignments for £1000, it seems to the Sheriff that, in the meantime at least, it cannot be included among the assets of the deceased. It is a question whether or not it be reducible. It appears to be regularly executed, and the assignment belongs to the marriage-contract trustees of the defender and his wife. The Sheriff is inclined to think that the deceased transferred the same as a marriage present to his son and his wife, but be that as it may, it stands as a good transfer, and must receive effect until reduced.”

The defender appealed to the Second Division.

Authorities cited—Domat, ii. 4, 3; Stair, iii. 8, 26; Skinner v. Skinner, Dec. 20, 1775, M. 1872; Webster v. Rettie, June 4, 1859, 21 D. 915 (and Lord Neaves, Ordinary, there); Nisbet's Trustees v. Nisbet, March 10, 1868, 6 Macph. 567; Johnston v. Cochran, Jan. 13, 1829, 7 S. 226; Keith's Trustees v. Keith, July 17, 1857, 19 D. 1066.

At advising—