Scottish Court of Session Decisions

The late Alexander Morison of Bognie and Frendraught, in the county of Aberdeen, and Larghan, in the county of Perth, died on 30th December 1879, leaving moveable property of the value of £85,000 or thereby, and heritable property, being the estate of Larghan, of the yearly value of £185. The other estates of Bognie and Frendraught were held by him under the fetters of a strict entail. He left no children, but was survived by his wife Mary Catherine Young or Morison, who became entitled, under an antenuptial contract of marriage, executed on 19th April 1837, by herself and her husband, in the English form, to the sum of £2500 thereby provided to her. With reference to that provision it was by the said contract “agreed and declared that the provision hereinbefore made for the said Mary Catherine Young shall be, and the said Mary Catherine Young doth hereby accept the same, in satisfaction and bar of the dower or thirds and freebench to which by the common law, or by custom or otherwise, she would otherwise be entitled in, from, or out of all or any hereditaments in Great Britain or elsewhere of which the said Alexander Morison now is or shall during the said intended coverture be seized for any estate to which dower or freebench is incident.”

Mr Morison left a settlement, dated 5th April 1876, in favour of the defenders, by which he conveyed to them as trustees his whole means and estate, heritable and moveable, and directed them, after making payment of his debts and funeral expenses and the expenses of the trust, to invest the whole residue in heritable securities, Government funds, or the mortgages or debentures of any incorporated company, and to expend the whole income thereof for the comfortable maintenance of his said spouse, over and above her rights under the marriage-contract, and also under a bond of annuity granted by him in her favour over the entailed estates for £900, to increase to £1800 upon the death of the widow of the previous heir of entail. Certain legacies were also bequeathed by the truster, but these were of comparatively small amount, and their payment was postponed till the death of his wife, and he declared that it should be imperative upon the trustees to expend the whole of the said income for her support and maintenance. He further directed that upon her death, should she survive him, the said residue should be paid over by the trustees to certain parties named, for the benefit of Dr Scott's Hospital for decayed business men and women in Huntly, for the purpose of erecting and endowing an additional wing, to be called Morison's Wing. On 17th March 1880 the pursuer was, upon the petition of himself and his sister Mrs Grace Julia Young or Carlyon, being the next-of-kin of the said Mrs Morison, appointed her curator bonis in respect of her mental incapacity; and on 31st May 1880 he raised the present action to have it found and declared that his ward was entitled to one-half of the moveable estate of her said husband in name of jus relictœ, and that the defenders, as trustees foresaid, should be ordained to hold count and reckoning with him as curator bonis, and make payment to him of the sum of £60,000, or such other sum as should be ascertained to be due by them as the balance of their intromissions with Mr Morison's estate, with interest. The defenders pleaded that the pursuer as curator bonis was not entitled, on behalf of the widow of the truster, to claim her legal rights, and that these were barred by the terms of the contract of marriage.

The Lord Ordinary ( Curriehill) dismissed the action as prematurely brought. In the note to his interlocutor, after narrating the facts before mentioned, his Lordship said—“… The sum provided to Mrs Morison by the marriage-contract (which is in the English form) is £2500; and in addition to that sum and the said bond of annuity the free income which she is entitled under her husband's settlement to have supplied for her support is the annual income of his moveable estate, which both parties are agreed is of the value of about £85,000, and the income of his

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unentailed estates, which is about £180 per annum. In the event of Mrs Morison's recovery she is herself to receive the whole free income of all his estates, payment of the legacies being postponed till her death. She is thus, at all events during the continuance of her mental ailment, very amply provided for.

“Now, prima facie, it is not very easy to see what benefit this lady could derive from the present claim of her curator being sustained, and the question is therefore forced upon the Court, whether there are any circumstances disclosed on the face of this record sufficient to justify the present action?

It is not said, and there is no reason to suppose, that the trustees are mismanaging the trust-estate of the lady's husband, or are misapplying the income; and as they are directed to retain the whole estate during Mrs Morison's lifetime, it is quite clear that if she should ever be restored to health she will then be entitled to raise the whole question of election, which cannot be decided without discussing some difficult matters of domicile and the construction of the English antenuptial contract. My opinion is that the curator bonis has failed to present any case warranting the interference of the Court in hoc statu.

Were he to succeed in this action, his ward would not, in my judgment, be in any way benefited, however much her next-of-kin might be benefited were she to die in her present state of mental alienation. And it is not unimportant to observe that the pursuer, who is brother of Mrs Morison, and consequently one of her next-of-kin, was appointed one of her husband's trustees, but declined to accept that office, and after having been appointed her curator bonis, has in that character raised the present action. On the whole, I am of opinion that the action is, to say the least, premature and uncalled for, and ought to be dismissed; but of course it will be in the power of the curator to renew his claim in the event of any natural change of circumstances.”

The pursuer reclaimed, and argued—The wife's claim for jus relictœ arose at once upon her husband's death, and her curator bonis had no choice but to vindicate it; the trustees must show that the testator's provisions are better for her, and of this at anyrate the curator is entitled to judge— Cowan v. Turnbull, June 13, 1845, 7 D. 872, and 6 Bell's App. 222, per Lord Cottenham; the question of election is in the hands of the Court. If the wife were sui juris, the trustees could not ask her to postpone election, for she is a creditor of her husband's executors— Fisher v. Dixon, June 14, 1840, 2 D. 1121, and July 6, 1841, 3 D. 1181, aff. April 6, 1843, 2 Bell's App. 63, where a curator had to judge between accepting a provision and coming to an arrangement with the trustees; in doing so he must do his best for his ward, and cannot alter the character of her succession— Hannay, Nov. 15, 1843, 6 D. 40; Fraser on Parent and Child, 502. The trustees here do not seem inclined to come to any arrangement, but maintain they are bound to expend a sum of money on the ward which she cannot enjoy, and which is really prejudicial to her health. (In answer to inquiries from the bench, the pursuer's counsel stated it to be the opinion of Mrs Morison's medical attendant, that though her mental illness had no tendency to shorten life it was incurable, and that she was not in a position to enjoy luxuries procurable at great cost, and that the present income of the residue of the estate was £4000 per annum.) Jus relictœ can only be barred by express terms—Erskine, iii. 9, 16; Fraser, H. and W., ii., 160; Trevelyan, Mar. 11, 1873, 11 Macph. 516. The expressions in the present case cannot include it— Keith, July 17, 1857, 19 D. 1040; Panmure, Feb. 29, 1856, 18 D. 703; Breadalbane, 14 S. 209, and 2 S. and M'L. 377; Hogg, July 12, 1804, 4 Paton, 581.

The defenders argued—The curator is bound to protect the interests of the wife, but not entitled to set aside the will of the husband where, as here, he has done his best for all— Cowan, supra, per Lord Jeffrey, 7 D. p. 881; Blaikie v. Milne, 1 D. 18, per Lord Cunningham. The right of election passes to the next-of-kin— Henson, 23 Law Journal, Chancery, p. 257; Hope's Law of Lunacy, 339; Robertson, 1841, 3 D. 345. The words used in the marriage-contract are equivalent to an express bar of jus relictœ—see Keith, supra, per Lord Curriehill.