Scottish Court of Session Decisions

William Tait died on 9th December 1884. He was survived by his wife but had no children. He was tenant of the farms of Venchen, near Kelso, Wide-open, Open Haughs and Town Yetholm Mains in Yetholm, Roxburgh, and of Linden, near Galashiels. He was also joint-tenant along with his nephew Andrew Lees of Buckholm, Williamlaw, and Ladhope Muir in the parish of Melrose. He left a trust-disposition and settlement by which he conveyed to trustees, of whom Andrew Lees and another nephew, George Tait, accepted and acted as his trustees, his whole estate and the leases of the farms, and in the second and third purposes directed them to convey to his wife the whole household furniture in the farm-house at Venchen along with £200 for mournings and interim aliment. He further directed them, fourthly, to pay £250 to Jane Tait, his housekeeper at one of his farms, and £50 to George Maillen, his shepherd at Venchen; fifthly, to convey to his nephew Andrew Lees (1) his whole interest in the lease of the farms of Buckholm, Williamlaw, and Ladhope Muir, (2) his right to the lease of Lindean, (3) the farm stocking, cattle, and household furniture, &c., on these farms, declaring that Lees should by acceptance thereof be bound to free and relieve the trustees of rents, wages, &c., in respect of these farms; sixthly, to convey to his nephew George Tait (1) the truster's right to the lease of the farms of Venchen and Wideopen, (2) the farm stocking, &c., on the farm, under the same declaration as applied to his other nephew. Each of these two nephews was also to pay the trustees £350 at the end of five years from the truster's death, and £350 at the end of ten years from the same period. He directed the trustees, seventh, to pay to his wife a liferent of the residue of his trust-estate, the sums of money to be paid by Lees and Tait to be included in residue; eighth, on her death to realise his estate and divide the free proceeds amongst his sister Mrs Agnes Tait or Davidson and his nephews and nieces in equal shares, these shares of residue not to vest till the time of payment arrived. By a codicil to the settlement, on the narrative of the provisions to the nephews of the truster's right to the leases of his farms, and whereas it was his wish that the assignations to them should be made as soon as possible after his death, and should take effect as at that date, he declared that each should be entitled to any profits the trustees might make out of the leases which were to go to him while they might hold them, and on the other hand should be bound to pay losses incurred by the trustees with reference thereto. This provision in the wife's favour was to be declared in full of her terce and jus relictœ. The trustees entered on their office and found that the free moveable estate after payment of debts amounted to £17,348, 3s. 6d. Mrs Tait, the widow, intimated that she repudiated her conventional provisions under the

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trust-deed, and she claimed one-half of the moveable estate as her jus relictœ in respect there were no children of the marriage. The effect of this claim was to raise certain questions for the judicial settlement of which the action of multiplepoinding was brought by the trustees. The defenders called in the action were the widow and the other legatees and the whole of the parties interested in the residue of the estate.

The question of legal importance now to be reported was thus stated by the real raisers (Cond. 7)—“The amount payable to Mrs Tait jure relictœ will require to be judicially ascertained, and it will also require to be judicially determined whether for the payment of the amount that may be found to be due and payable to the widow the general residue must first be exhausted, including the amount required for payment of the money legacies of £250 and £50, or whether the widow's claim for one-half of the value of the farm stocks that belonged to the deceased lies against these stocks, and the legatees to whom the same have been left, or whether in questions inter se these legatees are liable to relieve the general residue, and the general and residuary legatees of the widow's claim so far as relating to these stocks, or to the one-half of the value thereof.”

Claims were lodged amongst others by the widow for her jus relictœ, and for aliment from the testator's death, by Andrew Lees and George Tait claiming assignations to the leases and the farm stock bequeathed to them, and by the residuary legatees. Lees and Tait maintained that for the payment of the widow's jus relictœ the general residue must first be exhausted, while the residuary legatees maintained that the jus relictœ must be paid from the whole of the personal estate en masse, and that each legatee should contribute in proportion to the amount of his or her legacy.

The Lord Ordinary ( Fraser) sustained the widow's claim for jus relictœ, and further “Finds that the payment of the jus relictœ must be made by all the legatees to the amount of one-half of the legacies received by them, and that the burden of such payment is not to be laid upon the residuary estate in the first place.”

“ Note.—[ After stating other questions not the subject of final decision in this branch of the cause]—“Another question stated upon the record is this—[ His Lordship quoted Cond. 7, quoted supra]—The rule is settled that where a widow or children claim legal rights of jus relictœ and legitim which are inconsistent with the testamentary arrangement made by the husband and father by a general settlement, they cannot claim provisions in their favour under the settlement, and these go to the party from whom the property necessary to meet the jus relictœ or legitim is taken. The truster, moreover, in this case, has not left this matter in doubt, because he has expressly declared that the provisions in the widow's favour are to be held and accepted of by her as in full of terce and jus relictœ.

The questions now are—1st, From what part of the personal estate shall the jus relictœ be taken? 2dly, To whom shall the forfeited interests of the widow be given?

The two legatees, Tait and Lees, contend that the jus relictœ must be paid from the residuary estate, and that it is only in the event of that estate being insufficient in amount that any claim can be made against them. There can be no residue, it is said, until all the debts are paid. Jus relictœ, it is further said, is a debt, and must be satisfied before there can be any residue. Special legacies are not to be encroached upon till residue and general legacies are exhausted. Such is the argument, and the whole argument, submitted by Tait and Lees.

This raises a somewhat novel point, and it is necessary to consider whether or not the rule applicable to ordinary debts is applicable to the case of a claim for jus relictœ.

No doubt jus relictœ is in one sense a claim for a debt against the executor or trustee, as is shown by this, that the widow is not entitled to demand payment from any debtor to her husband's estate of a third or a half of the debt owing by him. Her claim is against the executor. See Dunduff v. Craigie, M. 3843 (1612), where it was found that ‘The relict has no action against the defunct's debtors for her third; she must pursue the executors, or if there are no executors she must confirm herself executrix-creditrix.’ ‘The Lords considering that the relict could fall nothing by her defunct husband but the third of his free gear, which could not be known but by confirmation of her husband's testament, that she behoved to urge the confirmation thereof; and albeit, she might have retention of her umquhile husband's goods, being in her hands for her third thereof, yet she could not have action for her third of the goods against any other till the testament was confirmed.’ This was subsequently adhered to in M'Aulay v. Bell, M. 3848 (1712); but the argument of the executor in this case was carried no further than this,—‘The wife's interest in the moveable estate of her husband, upon dissolution of the marriage, is to be regulated according to the nature of the subject—that is, she hath a right of property to the legal share of moveables that were in the joint possession of the husband and her, stante matrimonio; but the husband and his executors are fiars of sums of money, in which she hath no jus in re, but only a personal action against the executors to make the half furthcoming to him.’

There is a controversy as to whether the jus relictœ is a right of succession or a right of division. Stair (iii. 8, 43) and Erskine (iii. 9, 20) are of opinion that it is a right of division of the property over which the husband had, during the marriage, absolute right of disposal. Erskine, in dealing with the case of renunciation of jus relictœ during the husband's life, lays it down that such a renunciation does not operate as a conveyance of one-third ‘to her husband, so as to increase the dead's part from one-third to two-thirds,’ and he then adds, ‘The reason is, the wife's right is not of the nature of a debt, which may be transferred by the wife to the husband; it is a right of division which takes no place till the dissolution of the marriage.’

In the case of Fisher v. Dixon (16th June 1840, 2 D. 1156), which had regard to a claim for legitim, Lord Mackenzie put the matter thus:—‘When a father executes a general disposition of this kind, it is quite clear that he thereby conveys to the disponee the whole moveable estate, not excepting any part of it on account of legitim. The disponee has a title, therefore, to the whole, in itself good and valid. But the children, by the father's death, have vested in them a preferable

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right to a half or a third of that moveable estate, falling to them in equal shares. This is vested sola superviventia in each child for his own share. All of them, therefore, or each of them for his own share, may either reduce the general disposition pro tanto, and directly vindicate their shares of that legitim as under a real right of succession to the father, or they may leave the disposition unreduced, and letting the general disponee take the whole estate in the first instance, claim from him the amount of their shares of legitim. The latter is, I conceive, the more easy and natural way. The general disponee is entitled to take confirmation in his own favour generally, in so far as not opposed, and thereby obtain possession of the moveable estate, and to keep it subject to the claims of the children against him on account of their shares of legitim.’

The truster in the ordinary case knows that he must leave some debt to be paid off, and he knows the rule of law that that debt must be cleared away before there can be any residue, and that general legacies must suffer abatement before special can be encroached upon; and the law therefore presumes that he intends that the matter shall be so adjusted. But there can be no ground for holding such an intention to exist, with regard to a claim for jus relictœ made in defiance of his settlement,—a claim which he could not have anticipated, and which he could not be supposed reasonably to have considered as standing in the position of an ordinary debt. Tait and Lees stood in no nearer relationship to him than did the persons to whom he conveyed the residue of his estate. They were nephews, it is true, but the residuary legatees were his own sister, and the children of a brother and of other sisters. If, therefore, it cannot be reasonably supposed that he intended the residue to be entirely carried off by his widow, is there any other ground in law for holding that the claim must come against the residue in the first place? The rule that the widow cannot directly claim from the debtors to her husband's estate a half or a third of the sums due by them, but must make claim against the executor confirmed, is mere matter of administration, and for convenience sake. The jus relictœ vests ipso jure upon the husband's death, and the widow's right is to a half of the whole moveable estate, whatever it may consist of. If it can be turned into money by sale, and her right reduced to a pecuniary value, this, as being the most convenient course, will be adopted; and it is the ordinary course. But if the corporeal moveables left by the husband cannot be sold by auction or otherwise, she is entitled to demand a third or a half of these moveables specifically.

Such being the nature of her right, the Lord Ordinary cannot adopt the contention supported by Tait and Lees. There is no direct authority in the shape of precedents upon the subject. It is certainly not determined by any of the cases,—all of recent years,—where the Court had to adjust the rights of parties in consequence of claims for jus relictœ and legitim being made, adverse to the husband's and father's will. The points presented for decision in these cases had reference to the persons to whom the provisions, forfeited by the reclaiming widow and children, should be given. Heirs and next-of-kin claimed these forfeited provisions as intestate succession undisposed of; a fiar claimed the immediate enjoyment of the liferent in consequence of the forfeiture of the liferent; a daughter, who had right along with another daughter to the rents of an estate, claimed the half which was forfeited by that other daughter in consequence of her insisting upon legitim; and residuary legatees also put in their claim for the forfeited provisions. In all these cases the Court had to find out who was the party who was hurt by the upsetting of the settlement; but no question was raised as between one set of beneficiaries and another, as to which portion of the estate should bear the burden of the adverse claim for legitim or jus relictœ.

The cases seem to be in the order of date as follows:—

In Ker v. Wauchope (3rd May 1819, 1 Bligh, 25) the heir-at-law was successful in reducing the death-bed deed which had conveyed landed property for general purposes, but which had given a liferent to the heir. The forfeited liferent was given to the residuary legatee, who was the sufferer by the landed estate being carried off.

In M'Innes or M'Allister v. M'Allister (29th June 1827, 5 S. 862) the heir-at-law took up the estate which the testator had appointed differently, and this he was enabled to do because there were not disposing words in the will. A liferent interest of £5000 had been bequeathed to the heir, and which the Court held to be forfeited, in consequence of his taking up the landed estate as against the appointment in the will. This forfeited liferent was given to the persons to whomthe landed estate so carried off had been bequeathed.

In Peat and Others v. Peat and Others (14th February 1839, 1 D. 508) a widow repudiated the provision by her husband's will and claimed jus relictœ and terce. The provision in her favour was the interest on an heritable bond for £2000, the principal sum being appointed to be paid on her death to the testator's children. In consequence of her claim for jus relictœ and terce, she was held to have forfeited two-thirds of the interest payable on the bond, the other one-third going to her as terce. The forfeited two-thirds were given to the residuary legatees. The jus relictœ was paid from residue; but the only question argued and decided was whether the forfeited two-thirds should go to the residuary legatee or to the persons who were to obtain the principal sum on the widow's death.

In Nisbet's Trustees v. Nisbet (6th December 1851, 14 D. 145) the whole estate was ordered to be divided among brothers and sisters and their families, but there was an express clause of forfeiture in the event of any of the children challenging the settlement. One of them did so on the head of death-bed, and his share was given to the other brothers and sisters, whose proportion of the estate was lessened by the reduction of the father's deed. A claim was made by the next-of-kin, on the footing that quoad the forfeited share there was intestacy, which claim was rejected, and this was the only point decided.

In Breadalbane Trustees v. Pringle (15th January 1841, 3 D. 357) a child claimed legitim, and thereby forfeited a liferent given by the father's will to her. This forfeited liferent was ordered to be given to the general disponees of the father, who were the parties bound to pay the legitim.

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In Davidson's Trustees v. Davidson (15th July 1871, 9 Macq. 995) there was a direction to the trustees to give specific subjects in liferent to children and the fee to grandchildren, and the remainder of the estate was conveyed to trustees, with a direction to divide it among the grandchildren. Three of the children having repudiated the provisions in their favour, and successfully claimed legitim, their liferents of the specific subjects were given to the residuary legatees who were injured by the claim for legitim. The contention here was on behalf of the heir-at-law, that the liferents came to him on the footing of intestacy, and on behalf of the fiars of the specific subjects, on the footing that the liferents not being claimable, the right of fee became at once available.

In Harvey's Trustees v. Harvey's Trustees (30th January 1862, 1 Macph. 345) the forfeited interest was not given to the residuary legatees, but to parties whose beneficial interest was diminished by the election made. Lord Currie-hill in this case observed—‘In the cases of Ker, Peat, and Breadalbane, it was held that such an application of what is forfeited is in such cases warranted on the principle of surrogatum, or what appears to be called in England equity of compensation. In the case of Nisbet some doubts are thrown upon that principle. But whether or not it be sound, the principle of implied will is clearly so;’ that is, the implied will of the testator that the parties whose provisions were diminished by the election should get the benefit of the property that was forfeited.

The Lord Ordinary was referred to an English case which has some bearing upon the present one, as showing that a testator may by the terms of his will so define the residue as that the residuary legatee, in place of being a general legatee, shall be a specific legatee, and such seems to be the case here. But further, there may be such a claim made against the estate, or such a loss sustained by it, as to render the application of the rule as between special and general legatees altogether unjust and inequitable. For example, a testator having given directions to invest his estate and pay the interest to his wife for life, and after her death to pay seven different legacies, and then the residue to a legatee, the fund set apart, £2300, was in great part embezzled by the administrator, so that only £716 remained. It was held that ‘the pecuniary legatees must abate pari passu with the residuary legatee, each being entitled to the proportion they would have had if the whole amount had been forthcoming’ ( Baker v. Farmer, 1st June 1867,L.R., 4 Eq. 382). Vice-Chancellor Malins thus expressed himself in regard to these facts—‘In this state of things a common calamity happens to them both by the dishonesty of the persons in whose charge the fund was. The result is, that instead of £2300 stock, there is only £716 now forthcoming. What does fairness and justice require under such circumstances? I consider that justice requires that, as they have a common interest in the fund, and as the calamity is common, so the loss should be common also; in other words, that they should bear the loss in proportion to their interest, because this priority of the legatees has no application here, there being no deficiency of assets to pay the legacy in full. I must consider both of these parties as being in the possession of the legacy through the possession of the trustees, who await the period of distribution, namely, the life estate falling in, and upon that period of distribution arriving, if it had not been for the default of the trustee, the whole fund would have been forthcoming, and there would have been enough to pay all, and the residue would have gone to the residuary legatee.’

The conclusion at which the Lord Ordinary has arrived is that it would not be consistent with equity to do otherwise than declare that the jus relictœ shall be paid from the whole of the personal estate en masse, and that each legatee shall contribute in proportion to the amount of his or her legacy.”

Lees and Tait reclaimed, and argued— Jus relictœ was the widow's right to claim against the free executry estate of her husband to the extent of a-half or a-third according as there were children of the marriage, and the claim was one of debt against the estate and not a right of division. It was so regarded in M'Aulay v. Bell, Dec. 12, 1712, M. 3848, and Dunduff v. Craigie, March 13, 1612, M. 3843; Erskine's doctrine as to its being a right of division had been criticised in Fisher v. Dixon, June 16, 1840, 2 D. 1121. The ordinary rule must apply here. The deficiency created by the widow's claims must be made up so far as the residue was concerned, first, out of the residue, then out of the general legacies, and lastly, if both were inadequate, out of the subjects of special bequests— Inglis v. Inglis, Jan. 18, 1869, 7 Macph. 437, vide opinion of Lord President. The decision in Baker v. Farmer, cited by the Lord Ordinary, had been reversed, May 8, 1868, L.R., 3 Ch. App. 537. The rationale of the other cases cited by him was that persons injured by the jus relictœ were to be compensated.

The residuary legatees replied—This was an exceptional case, and the ordinary rule could not be applied, for two reasons. (1) It was quite clear that the truster had never contemplated the widow's repudiation of her conventional provisions. He could never have intended his widow entirely to carry off the residue of his estate. (2) The truster had practically made a tripartite division of his estate. The residuary clause was not a bequest of residue but a bequest of a specific and defined part of his estate not conveyed to others— Attorney-General v. Johnstone, July 5, 1769, Ambler's Rep. 579; Baker v. Farmer, supra; Williams on Executors, 1467.