Scottish Court of Session Decisions

James Barclay, farmer, residing in Huntly, died without issue on 31st May 1866, survived by his wife. There was no antenuptial contract. Barclay left the following probative writings:— (1) a testament dated 15th July 1862, dealing with his moveable estate, by which he nominated his wife sole executrix and; universal legatory, under the burdens therein contained, with relative codicil thereto annexed, dated 13th March 1865; (2) a probative writing, also dated 15th July 1862, containing recommendations to the executrix under his testament, with probative declaration annexed relating to the codicil, and dated 13th March 1865; and (3) a trust-disposition and deed of settlement of his heritable estate also dated 15th July 1862.

At Barclay's death his widow was confirmed executrix, and entered into possession of his free moveable estate, amounting to about £1988. Mrs Barclay, who had no separate estate, died intestate on 15th December 1878. On the application of some of her next-of-kin, the Rev. Charles Bruce, the first party to this case, was appointed factor upon her estate, and was thereafter confirmed executor-dative qua factor. The testator's sister Mary Barclay or Duncan predeceased, and her children Ann and Margaret were the parties of the second part, while Mrs Barclay's heirs in mobilibus were the parties of the third part.

The clauses in the probative writings which related to the dispute with which this Special Case dealt were as follows:— First, in the testament of 15th July 1862—“But while it is my wish that my said spouse shall enjoy the free and undisturbed use of my said means and estate if she should survive me, it is my anxious desire that as soon after my death as convenient she will execute a testament bequeathing one-half of the means and estate which may pertain and be resting-owing to her at the time of her decease to be divided amongst certain of my relatives to be named by me in a separate writing containing my wishes on that subject.” Second, in the codicil thereto, leaving a legacy of £50 to his wife's sister, the testator adds—“Which legacy shall be paid out of the half of the means and estate which I have recommended my said spouse to bequeath to certain of my relatives named in a separate writing.” Third, in a probative writing of the same date as the testament—“Considering that I have … executed a testament nominating … my spouse, in case she should survive me, to be my sole executrix and universal legatory, and expressing a hope that as soon after my death as convenient she would execute a testament bequeathing one-half of the means and estate which may pertain and be resting-owing to her at the time of her decease, to be paid to and divided amongst certain of my relatives to be named by me in a separate writing containing my views on that subject—it is my anxious wish, and I do hereby recommend, that in making said testament my said spouse will direct,” &c.; and then followed a scheme of division of the fund recommended to be bequeathed.

The first and third parties maintained that the testator's whole moveable estate vested in his wife in fee on her survivance, unburdened by any trust in favour of the persons mentioned in the probative writing, or any of them; and that the husband's desire or recommendation not having been carried out by his widow, her executordative was not entitled to give effect thereto.

The second parties maintained that the testator's moveable means and estate vested in his wife on her survivance, subject to a trust in favour of the persons mentioned in the probative writing, and subject to an obligation on her to bequeath one-half of the means and estate which might be owing to her at the time of her death to and amongst her husband's relatives, as directed by him as above mentioned, and that her executor and representatives were bound to implement this direction or recommendation.

The question of law submitted for the opinion of the Court was as follows:—“Is the first party bound or entitled to give effect to any extent, and if so, to what extent, to the recommendation contained in the probative writings before mentioned in favour of the second parties?”

Authorities—M'Laren on Wills, i. 324; White v. Briggs, Feb. 27, 1846, 15 L.J., Ch. 182; Lamb v. Eames, March 10, 1871, L.R., 6 Ch. App. 597; in re Hutchinson and Tenant, May 11, 1878, 8 Ch. Div. 540; Parnall v. Parnall, July 24, 1876, 9 Ch. Div. 96; Lewin on Trusts, 118; Williams, i. 809; Jarman on Wills, i. 356.