Scottish Court of Session Decisions

William Tainsh, grocer, Greenock, died on the 11th December 1881. He left a widow and four children, one of whom died shortly after him. He left a holograph trust-disposition and settlement dated 31st January 1880, by which he appointed the Rev. A. Davidson, E.U. minister, Greenock, and his brother John Tainsh, grocer, to be his trustees and executors. By this settlement he bequeathed to his wife for her own behalf and that of the children “the entire sum of money at credit of my private account in the firm of Robert Lusk & Co., wholesale grocers, Greenock,” directing the trustees to invest it as they should see fit, the interest of such investment to be paid over to his widow at such time as she might require it, but no part of the capital was to be paid unless under such circumstances that the trustees considered it absolutely necessary. In the event of his widow's death or marriage the interest was to go in equal proportions to each of his surviving children, so long as they remained unmarried, when in such case they were each to receive £50 as a gift. His wife was also to receive a gift of £10. After mentioning one or two other small legacies, he directed that the residue was to be equally divided among the various schemes and funds of the Evangelical Union. Besides the estate dealt with in this trust settlement, Mr Tainsh left a small amount of other moveable property, of which his executor came into possession. The whole estate was moveable property.

On 28th March 1882 a meeting of the trustees was held at Greenock in the office of Mr Dunlop, the law-agent of the trust, at which Mrs Tainsh was present. She had been by letter invited to attend a meeting of the trust to be held for the purpose of assuming an additional trustee, “thereafter a statement of how matters stand with the trust will be laid before you.” She signed a minute, of which the following is the part material to this case:—[ After narrating the assumption of the new trustee]—“The factor [John Tainsh] reported that he had received payment of the deceased's interest in the firm of R. Lusk & Co. and the other assets of the estate, and had deposited in name of himself and Mr Davidson as trustees the sum of £1147,18s. 7d., in the Royal Bank's branch, West Blackball Street. In the Provident Bank there is in name of the trustees the sum of £7, 9s. lid. He stated that he had in hand the £21,9s. paid today by the Prudential Assurance Company. The factor submitted a statement showing the above balances in cash and on hand. Mrs Tainsh, who was in attendance, having been called in, the position of the estate was shown to her, and the law-agents read over the settlement and explained the rights of Mrs Tainsh and the children under it, and also their rights at common law. Mrs Tainsh expressed herself as desirous of carrying out the wishes of her late husband as expressed in his settlement, and in token of her approval and concurrence she subscribes this minute.” Thereafter the interest of the estate was paid to her for the support of herself and her three children, until the beginning of 1883, when she married John Donaldson, clothier, Glasgow. The interest of the invested sums of money continued to be paid to her, but for the use of her children, by a weekly allowance, the receipts for which were signed by Mrs Donaldson. The form of receipt was as follows:—“Received. .. the sum of sixteen shillings and sixpence sterling, being weekly proportion of interest which said estate yields, and paid to me for behoof of said William Tainsh's children.— Mrs John Donaldson.”

Both before and after the second marriage the widow made various requests to the trustees for assistance. One of these applications, which was made through a solicitor in 1882, she, in applying for it, referred to the power of the trustees under the will to draw on the principal if they should think it indispensable, and representing that it was necessary to do so.

The trustees also, in January 1884, advanced £12 to her on account of the children's interest in the estate for the purpose of paying a half-year's rent and taxes on the house in which she lived.

In May 1885 Mrs Donaldson intimated that she claimed her legal rights, and on 28th September 1885 raised an action of count, reckoning, and payment against Tainsh's trustees, concluding for an accounting for her jus relictœ and payment of

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£300, or such sum as should be found due as jus relictœ to her.

The defenders averred that the condition of the estate had been fully explained to the pursuer on Tainsh's death, and that her legal rights had also been fully explained to her before she signed the minute of the meeting of the trustees above quoted, and that she had in these circumstances made her election to stand by the settlement; further, that she had frequently homologated it.

A proof was led.

The pursuer deponed that she was in ill-health at the time she attended the meeting of March 1882; that although she had a copy of her husband's settlement she had not understood it; that at the meeting a statement was read over to her showing how much money her husband had left; that she knew that she would get the interest of the sum invested, but did not understand that it would cease to be payable to her when she got married again; that no suggestion was made that she should take time to consider the matter; that she was willing to accept the provisions made in her favour out of respect for her husband's memory. On the other hand, Mr Dunlop, writer, the defenders' agent, deponed that a statement of the position of the estate was read over to her and the effect of the will explained. “I explained to her that at common law a widow was entitled, in the case of children being left, to a third of the estate; that the children were entitled, to a third; and that the remaining third was at the disposal of the deceased, and that it fell to the children in the event of its not being disposed of. I put a figure upon the third which would go to her in the event of her claiming her legal rights.” In cross-examination he stated—“I did not tell her that if she took the £300 her re-marriage would have no effect.”

Mr Dunlop also deponed that he had suggested to the pursuer to take time time to deliberate, and that she did not wish to do so.

The pursuer's brother deponed that she had told him just after the meeting that she had been informed that she could take a third of the estate.

The Lord Ordinary issued an interlocutor assoilzieing the defenders, but found no expenses due to or by either of the parties.

The pursuer reclaimed, and argued—The proof as to proceedings at the meeting held on March 1882 showed that the pursuer had not really understood what her legal rights were, and what would be the effect of her electing to stand by the provisions in the settlement in the event of her re-marriage. When a widow thus made her election in ignorance of her true position, the Court would not allow the mere fact that she had signed a minute adhering to the provisions contained in her husband's will to be a final bar to her restoration. In this case the necessary information had not been given to the pursuer— M'Fadyen v. M'Fadyen's Trustees, December 2, 1882, 10 R. 285; Millars. Durham and Others, March 16, 1886, 13 R. 764.

Argued for the respondent—The pursuer had sufficient knowledge of what was the true state of her husband's estate, and what was the share due to her at common law and under the settlement. She had a copy of the will and explanation made to her at the meeting. Besides, she had homologated her signature at the meeting by her actings afterwards, as she had done nothing against the provisions of the minute for four years— Hope v. Dickson, December 17, 1883, 12 S. 222. The motive of homologation has nothing to do with the homologation itself— Selkirk v. Law, March 2, 1854, 16 D. 715.