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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Duncan's Trustees v. Duncan and Others [1881] ScotLR 18_671_1 (9 July 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0671_1.html
Cite as: [1881] SLR 18_671_1, [1881] ScotLR 18_671_1
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SCOTTISH_SLR_Court_of_Session
Page: 671↓
Court of Session Inner House Second Division.
v.
Facts:
A husband and wife in their daughter's marriage-contract bound themselves to pay to the marriage-contract trustees one-fifth of the free residue of the estate of each of them remaining after satisfaction of onerous obligations, the said share to be payable on the lapse of six months after the death of the longest liver of them. The husband thereafter died leaving to his widow a liferent of his whole estate. Held that the widow was entitled to a liferent of the whole estate, and that the daughter's marriage-contract trustees had no claim to the principal or interest of one-fifth of her father's estate till after the death of the widow.
James Duncan, W.S., Edinburgh, died on 27th September 1874, survived by a widow, two daughters, and one son, James Barker Duncan, W.S. He was also survived by three grandchildren, the family of a daughter Mrs Millar, who predeceased him. Mr Duncan had in 1865 been a party, as had also Mrs Duncan, to the marriage-contract of Mrs Millar. In that marriage-contract Mr and Mrs Duncan with mutual consent bound themselves to convey and make payment to the marriage-contract trustees acting for the time of “one-fifth part or share of the free residue of each of them remaining after satisfaction of onerous obligations, the said share to be payable on the lapse of six months after the death of the longest liver of the said James Duncan and Mrs Christian Duncan.” It was then declared that the said share should be liferented by Mrs Millar and by her husband if he survived her, and that the fee should belong to the child
Page: 672↓
or children, if any, of the marriage. Dr Millar and Mrs Millar both predeceased Mr Duncan. There was no marriage-contract between Mr and Mrs Duncan. Mr Duncan left a trust-disposition and settlement by which he directed his trustees to deliver to his wife if she survived him all his furniture and effects in his dwelling-house absolutely as her own property. He also directed them to pay to her the free yearly produce of the residue of his whole estate, heritable and moveable, during all the days of her lifetime. The sixth purpose was as follows—“In the sixth place, on the lapse of six months after the death of the longest liver of me and my said spouse, my trustees shall implement the obligation undertaken by me in the antenuptial contract of marriage, of date 5th July 1865, entered into by and between John Millar, Esquire, doctor of medicine, then residing at No. 13 York Place, Edinburgh, now deceased, and John Millar, Esquire, of Sheardale, his father, on the one part, and Christian Duncanson Duncan, my eldest daughter, also now deceased, with consent of me and my said spouse, on the other part, to convey and made payment to the trustees or trustee acting for the time under the said contract, of one-fifth part or share of the free residue of my estate remaining after satisfaction of onerous obligations, subject to the conditions therein mentioned, and which provision I do hereby declare to have been in full satisfaction to the said Christian Duncanson Duncan of all claim of legitim, executry, or others whatsoever competent to have been demanded by her through my decease had she survived me.” The trustees under Mr Duncan's settlement regularly paid to his widow the income of her husband's estate as directed by his settlement from his death in 1874 till the date of this Special Case. Doubts having arisen as to whether they were bound to pay to her the whole annual produce or only four-fifths thereof, retaining the remaining fifth and paying it either periodically to the marriage-contract trustees of Mrs Millar under the obligation in her marriage-contract, or paying to them the accumulations of it, six months after the death of Mrs Duncan, this Special Case was adjusted for the opinion of the Court. Mr Duncan's testamentary trustees were the first parties, Mrs Duncan was the second party, and Mrs Millar's marriage-contract trustees were the third parties. The opinion of the Court was also asked as to whether the provision of furniture and other effects in Mr Duncan's dwelling-house to Mrs Duncan in his settlement was an onerous obligation in the sense of the clause in Mrs Millar's marriage-contract above quoted, and, if not, whether the value of it ought to be taken into account in ascertaining the fifth part of the residue of Mr Duncan's estate falling to be paid to the marriage-contract trustees.
At advising—
Now, the wife is a party as well as the husband as far as her own separate estate is or may be concerned; and I cannot read that to mean anything but this, that while there is unquestionably a right to a share of the estate, both as that estate existed at the time of the testator's death, and as it will stand at the death of the longest liver, there is no right whatever until the death of the longest liver to interfere in any way with the directions that the husband has given in regard to the time at which it is payable. One-fifth part of the capital will eventually be payable under the marriage-contract. Except in regard to that, I can see no right whatever that the trustees have under the contract to interfere with directions which were quite within the power of the testator, and which did not constitute any infringement of the obligations undertaken by him or his wife.
As to the furniture, I doubt whether there is any ground whatever for raising this question. The queries put to us on that subject are entirely out of the question.
The time will come for making the exaction once the widow dies, but not until then is even a fifth part of this estate demandable. I am clearly of opinion that the only way in which we can deal justly in this matter is to answer the questions as proposed by your Lordship.
The Court pronounced this interlocutor:—
“The Lords having heard counsel for the parties on the Special Case, are of opinion and find, that in paying the income of the trust estate and in handing over the furniture to the second party, the trustees, parties of the first part, have acted in conformity with the legal rights of parties, and that the parties of the third part have no title or interest to interfere with their management to this effect.”
Counsel for First Parties— A. J. Young. Agents— Duncan & Black, W.S.
Counsel for Second Parties— J. A. Reid. Agent— Alexander Matheson, W. S.
Counsel for Third Parties— Macfarlane. Agents— Duncan, Archibald, & Cuningham, W.S.