Scottish Court of Session Decisions

John Boyd Baxter, LL.D., Dundee, died on the 4th August 1882, survived by his wife, but without issue. He left a trust-disposition and settlement dated in 1881, and conveying his whole estate, heritable and moveable, to trustees, the purposes of which trust were as follows:—first, for payment of his debts; second, for payment out of the residue of his estate after his wife's death of a further contribution to the funds of University College, Dundee, to which he had already undertaken to give a sum of £10,000 (this sum he actually handed over to the college between the date of his settlement and his death); third, for payment of “the free annual proceeds or income of my estate and whole effects, heritable and moveable, before conveyed to my dear wife Margaret Edward or Baxter, if she shall survive me, during the whole period of her life, to be used and enjoyed by her as she shall think proper;” by this purpose he also gave his wife a liferent of his household furniture and whole plenishings connected with his establishment; fourth, “I direct and empower my said trustees, after the death of the longest liver of me and my said wife, to realise and convert into money all my estate and effects, or such part or parts thereof as they think proper, and that in such manner, and at such time or times, and at such prices as they think fit, and after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed this deed), I direct and appoint my said trustees, as soon as they conveniently can, or at such time or times as they consider proper, with full power to postpone the payment of any of the legacies underwritten if my trustees think it expedient to do so, to pay to the institutions, societies, and persons after mentioned, or to hold in trust for behoof of such females as are after specified, whose husbands' rights are excluded, the following sums or legacies which I hereby legate and bequeath to them respectively.” Then followed a list of the legacies, amongst which were legacies to the amount of £16,000, among various nephews and nieces of his wife, who were among her next-of-kin. The fifth purpose provided for the division among certain legatees, after his wife's death, of his household furniture, and bequeathed certain books and other articles. Sixth, regarding the residue of his estate and effects, he directed and appointed his trustees to apply and appropriate the same when realised “to and for such useful and charitable or benevolent institutions, and such uses and purposes, religious or sacred, as they shall think proper, not forgetting to aid respectable deserving females to whom a little help might bring comparative comfort, and not forgetting also that if the College in Dundee should require somewhat more assistance, and they should be able to give it,” he most willingly gave them full power to bestow it, and declared that they should be the sole judges of the propriety of giving such further assistance, the personal and other stated legacies before bequeathed being to be paid and provided for in the first place, and the other purposes of his settlement thereafter carried out and fulfilled. The settlement thus concluded—“In witness whereof, I and my said wife have subscribed these presents.” The will was holograph of Dr Baxter, and was signed by Mrs Baxter as well as by him.

There had been no antenuptial contract of marriage between Dr and Mrs Baxter. They had made a mutual settlement in each other's favour in 1828.

Dr Baxter was, as already stated, survived by his widow, but the shock of his death seriously affected her, both physically and mentally, and it was admitted by all parties in this action that she was not in a condition to attend to matters of a business nature from the time of her husband's death till her own, which occurred a few weeks after her husband's, viz., on 15th October 1882.

Dr Baxter's estate consisted of bonds over heritable property in Scotland to the amount of £12,500, and of moveable funds to the amount, as at the date of his death, of £58,620 or thereby. There was found in Mrs Baxter's repositories at the time of her death a deed dated in 1871, by which she conveyed and assigned to her husband, “in case he shall survive me,” her whole estate, heritable and moveable, and appointing him, “in case he shall suryive me,” to be “my sole executor and universal intromitter with my whole means, estate, and effects of every kind, and that for his own use and behoof, with full power to him to do everything competent to him as my executor, it being understood between us, in case of his surviving me, that he will execute a deed of settlement or trust-deed, to take effect at his death, in the terms and for the purposes settled and known to us both, with such necessary alterations as he may consider called for on account of any change of circumstances that may take place. With this duty he is solely and confidently entrusted, and in the disharge of it no one shall interfere.”

The trustees were in course of paying the legacies directed by the fourth and fifth purposes of the will when a claim was made upon them by Allan Edward, a nephew and one of the next-of-kin of Mrs Baxter, who had obtained himself decerned her executor-dative qua one of her next—of-kin, for jus relictœ, to which he alleged that Mrs Baxter was entitled in respect that she had survived her husband and had not renounced her legal rights as his widow. He also maintained that she was entitled, as terce, to one-third of the free rental of her husband's heritage from the date of his death to the date of her death.

This action of multiplepoinding was raised by Dr Baxter's trustees to determine the question which thus arose, and an action which Mr Edward, as Mrs Baxter's executor, had raised against Dr Baxter's trustees for declarator that she was entitled to legal rights, and for count and reckoning therefor, was meanwhile sisted. The position taken up by Dr Baxter's trustees is explained in their claim and pleas-in-law in this multiple poinding. They claimed (1) to be ranked and preferred to a sum of £8000 consisting

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of legacies to certain of Mrs Baxter's nieces for whom the trustees were directed to hold the same in trust, and to the whole residue after the legacies should be paid, to be held for the residuary (6th) purpose of the settlement. They lodged also an alternative claim which need not be here related.

They pleaded—“(1) The trust-disposition and settlement of Dr Boyd Baxter having been executed by him in terms and by virtue of an agreement and understanding come to between him and Mrs Baxter prior to the execution of Mrs Baxter's last will and testament, of date 11th July 1871, Mrs Baxter's representatives are barred from making any claim against Dr Baxter's estate in reprobate of his said trust-disposition and settlement, and of said agreement, and are therefore not entitled to claim Mrs Baxter's terce and jus relictœ as in her right. (2) Mrs Baxter's right of terce and jus relictœ being excluded by the terms of her husband's trust-disposition and settlement, and of her consent thereto, and approval thereof; and separatim, revocation of her consent thereto, and approval thereof, being only competent to her personally, the claimants are entitled to be ranked and preferred in terms of the first alternative of their claim. (3) The trust-disposition and settlement of the said Dr John Boyd Baxter, consented and approved of by his wife, the said Mrs Margaret Edward or Baxter, as aforesaid, being truly a mutual settlement between them, whereby Mrs Baxter obtained for herself the liferent of her husband's whole estate, and also valuable provisions in favour of certain of her next-of-kin, and therefore not revocable by Mrs Baxter alone, or at least by Mrs Baxter after the death of her husband, the said Dr John Boyd Baxter; and separatim, being not now revocable by her representatives, the claimants are entitled to be ranked and preferred in terms of the first alternative of their claim. (4) Mrs Baxter's claim of terce and jus relictœ being only competent to her in the event of her revoking her consent and approval of her husband's said trust—disposition and settlement during the lifetime and in the knowledge of her said husband, and this not having been done, the claimants are entitled to be ranked and preferred in terms of the first alternative of their claim.”

Allan Edward, as Mrs Baxter's executor, claimed half the free moveable estate of Dr Baxter and one-third of the rent of his heritage between his death in August and his wife's death in October, 1882. Claims were also lodged by Kenrick Alexander Edward and Alfred Edward, children of a brother of Mrs Baxter, and by James Kenrick Edward and three of his sisters, children of another deceased brother of Mrs Baxter, and among his next-of-kin. These claimants also claimed on the footing of receiving payment of the shares which would fall to them of Mrs Baxter's legal rights.

The Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Repels the claim for Allan Edward as Mrs Baxter's executor, and the claims for Kenrick Alexander Edward and Albert Edward, and for James Kenrick Edward and the Misses Edward, so far as claiming jus relictœ and terce out of the said John Boyd Baxter's estate, and decerns, &c.

“ Opinion.—The question is, whether the lat Mrs Baxter, the testator's widow, by consenting to the provisions of his trust-disposition and settlement, had renounced her claim to jus relictœ, so as to exclude the claim now brought forward by her next-of-kin as representing her?

It is not disputed that the deed implies in law, although it does not in terms express, the testator's intention to exclude the legal rights of the widow according to the doctrine stated by Erskine, iii. 3,30, and established by the authority of many decisions; and the only question is, whether Mrs Baxter had assented to that intention on the part of her husband, and consented to the provision in her favour, so as to preclude her from rejecting the deed upon her husband's death?

I am of opinion that she did consent; and that the claim of her next-of-kin is therefore excluded. She signs the deed as a consenting party, and that would probably in itself have been sufficient to intimate her acceptance of its provisions. But it is said that her consent is confined to the dispositions contained in the fourth direction to the trustees; and that she cannot be held to have known or consented to any of the other provisions of the deed. I think this contention untenable. There are indications throughout the deed that the testator is speaking on his wife's behalf as well as his own; but without adverting to these, and upon the construction of the clause in question alone, I am of opinion that it imports an acceptance by the wife of the entire settlement, and not merely her approval of particular legacies.

It is necessary to observe the general scheme of the deed. By the first purpose the trustees are directed to pay the testator's debts; by the second they are authorised, if they think proper, to make a further contribution out of the residue of the estate, after his ‘wife's death,’ to a college to which he had already undertaken to give a certain sum. By the third purpose he gives his wife the liferent of his whole estate, heritable and moveable; and there can be no question that if Mrs Baxter accepted that provision she thereby renounced her jus relictœ. Then follows the clause which is to be construed, and by which the testator, in the fourth place, directs his trustees, ‘after the death of the longest liver of me and my said wife, to realise and convert into money all my estate and effects, or such part thereof as they think proper, … and after the death of the survivor of me and my wife, and with her consent and full approval, in token of which she has subscribed this deed,’ he appoints his trustees to make payment of a number of legacies, including legacies to various near relatives of his wife, of whom several were among her next-of-kin. By the fifth purpose he makes certain bequests of furniture; and by the sixth he disposes of the residue.

By the fourth direction to the trustees, therefore, the testator expresses a clear intention to dispose of his entire estate at his wife's death, if she should survive him; and his wife's consent to the specified legacies, which are given upon that footing to her friends and relations, can have no meaning, if it does not import her consent to these legacies as the full amount that is to be bequeathed out of the entire estate to persons whom she desires to favour. That necessarily implies her consent to a different disposal of the

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residue. But it also implies her acceptance of the liferent provision to herself. For the introductory words of the clause very clearly express the assumption on which the bequests proceed—viz., that the capital of the entire estate shall be available at the death of the widow for the subsequent purposes of the will; and that could only be brought about by the operation of the previous direction, that the testator's wife, if she survived him, should receive the income of the whole estate during her survivance, but should have no part of the capital. I am of opinion, therefore, that the bequests in question must be held to have been given on the understanding that the widow should be content to accept the liferent provided for her, and to claim no part of the capital. She had, therefore, no further right to elect, after her husband's death, between the testamentary provisions and her legal rights. She could neither defeat the legacies to which she had consented by rejecting the deed and claiming jus relictœ, nor could she defeat the testator's intention by taking away one-half of the moveable estate, and leaving the other half burdened with legacies which had been given with her consent, upon the understanding that the whole estate would be available for the purposes of the will.

If this view be correct, the other questions which were argued do not require to be considered. But I shall add that I can give no weight to the argument which was founded upon the terms of Mrs Baxter's will. The will provides only for the event of her husband surviving her; and it is impossible therefore to hold that it expresses any intention with regard to the claim for jus relictœ, which could only arise in the event of her surviving him.”

The claimant Allan Edward reclaimed, and argued—The question raised here was, whether the consent which Mrs Baxter gave to a portion of her husband's deed of settlement amounted in law to a renunciation of her legal right, so as to exclude the present claim brought by her next-of-kin. The Lord Ordinary in deciding that it did, had decided that the legal rights of a widow might be discharged by implication. But in order to import renunciation there must be an express clause by the husband that the provisions made by him were to be accepted by the wife in full of her legal claims — Johnstone v. Coldstream, June 30, 1813, 5 D. 1297—or an express renunciation by her. The case fell to be ruled by Leighton v. Russell, December 1, 1852, 15 D. 126. Lord Fullerton observed there that the consent of a wife to her husband's testament was a very different thing from the case of a marriage-contract, where each party is giving and receiving something, the taking of which is incompatible with retaining that to which the taker previously had right, and which was a contract where there might be a perfectly fair implication that something was surrendered on the one side for something on the other. There could be no such implication with regard to the present deed of settlement.

The real raisers replied—It was true there was no express consent, except as regards the legacies in the fourth purpose, but there was enough consent on her part to import by implication a renunciation by her of her legal rights. The wife consented to legacies being given to her own relatives, and meant them to be paid out of the whole estate, and not out of the dead's part. It was absurd to argue that she could have taken her common law provisions and thrown the burden of these legacies on the dead's part. But further, her signature to the deed imported her consent to all that was in the body of it,-unless anything was to be found in it to the contrary. Her will of 1871, too, showed that she had previously contemplated and arranged with Dr Baxter the legacies in the fourth purpose. She had never withdrawn her consent, and no right to do so now could have transmitted to her next-of-kin—Ersk. Inst. i. 632.

At advising—