Scottish Court of Session Decisions

This was a Special Case presented by (1) John Traill, surgeon in Arbroath, and others, trustees under the settlement of the late William Caithness, corn merchant, Arbroath; (2) Mrs Caithness, the widow of the said William Caithness; and (3) her pupil grandchildren, beneficiaries under the settlement.

Mr Caithness died on 11th February 1874, leaving a trust-disposition and settlement, dated 2d May 1872. He was survived by his wife. There was no issue of the marriage. The amount of his estate, after payment of all debts and expenses, was about £1200. Mrs Caithness had a daughter, Mary Ann Gordon, by a previous marriage, who married David Wilson, and had at the date of this case two children, William Caithness Wilson and Margaret Nicoll Wilson.

The settlement of Mr Caithness contained no express declaration that the provisions in favour of the widow should be accepted of by her as in full of her legal claims. By the third purpose of the deed the widow was to have the liferent of the truster's household furniture; and under the fourth purpose she was entitled to the liferent of the residue of the whole means which belonged to him at the time of his death, the trustees being empowered and required to advance from capital, if the income of the residue should not amount to £40 yearly, so as to make up the amount to £40; it being provided, “nevertheless, that in case the said free yearly revenue shall exceed the said sum of £40 sterling, my said wife shall be entitled to receive the whole free revenue, my intention in said restriction being to prevent undue encroachment on the stock.” Mrs Caithness did not accept the provision in her favour contained in the settlement. She maintained that she had right to the provisions over and above her legal claims. The trustees maintained that she must elect to take either the provisions in her favour under her husband's settlement or her legal rights. By the fifth, sixth, and seventh heads of the trust-disposition and settlement, discretionary powers were conferred on the trustees to advance or expend part of the capital of the trust-funds for certain pur-poses, viz., (1) under the fifth, for educating and training in business William Caithness Wilson; (2) under the sixth, for enabling him on attaining

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majority to engage in a profession or business; and (3) under the seventh, for rendering pecuniary assistance to Mrs Mary Ann Gordon or Wilson during the lifetime of the widow, but that only if she was in circumstances to require it. The trust-disposition and settlcment contained no express stipulation that the provisions thereby conceived in favour of the truster's widow were to be affected in the event of the discretionary powers above mentioned being exercised; and the widow maintained that no payment could be made under any of these purposes without her consent. The eighth purpose directed the liferent of the truster's whole estate to be paid to Mrs Wilson after the death of the widow, and the last purpose provided that the residue of the trust-estate should belong to the lawful child or children of the said Mary Ann Gordon or Wilson alive at the death of the last survivor of the testator and his wife and the said Mary Ann Gordon or Wilson, equally between and among them, share and share alike, if more than one (except William Caithness Wilson, who got a double share); with a declaration that if before vesting any of said children should die leaving lawful issue, such issue should be entitled to their parent's share; and with the further declaration that the share of the beneficiary or beneficiaries should not be payable until they should attain twenty-one years of age, or, being daughters, should be married; but with a power before majority, or in the case of daughters, before marriage, to apply the interest or annual produce of their shares for and towards their maintenance and education.

The following questions were submitted to the Court:—(1) “Is the truster's widow, the second party, entitled to the conventional provisions in her favour under the trust-disposition and settlement of her husband, the said William Caithness, and also to her legal claims of jus relictœ, and an allowance for mournings, and aliment to the first term after her husband's death, or is she bound to make her election between the said conventional provisions and legal claims? (2) If the second party be not bound to make her election, and shall take both her conventional provisions and legal claims, will she in that event be entitled to have the income of the residue, to which she is entitled under the trust-disposition and settlement, made up out of capital to £40 per annum? (3) Assuming that the second party is bound to make her election as between said conventional provisions and her legal claims, and accepts the provisions in her favour in the said trust-disposition and settlement, or that she is entitled to both her legal claims and conventional provisions, are the first parties entitled, without her consent, to encroach on the capital of the estate, and give effect to any or all of the fifth, sixth, and seventh purposes of the trust-settlement? Or can she prevent the first parties from encroaching on the capital of the funds except for the purpose of making up therefrom the annuity or sum of £40 payable to her? (4) When will the shares of residue vest?”

Authorities— Riddell v. Dalton, M. 6457; Keith's Trustees, 17th July 1857 19 D. 1040, Erskine's Institute, iii. 3, 30; Leighton v. Russel, Dec. 1, 1852, 15 D. 126; Young, 1664, M. 6447; Breadalbane's Trustees v. Duke of Buckingham, March 5, 1840, 2 D. 731; Minto v. Kirkpatrich, May 20, 1842, 4 D. 1224; Thomson v. Smith, Dec. 12, 1849, 8 D. 282; Cross v. Burn, Hume 484; Belly. Laurie, Hume 486.

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