Scottish Court of Session Decisions

Mr Andrew Snody, S.S.C., died on 18th March 1881, leaving a trust-disposition and settlement by which he directed his trustees to divide the residue of his estate into three equal portions, one-third to be paid to the three children of Mrs Wallace, a deceased daughter, in equal shares, under deduction of a sum of £274 advanced to them; another third to be paid to Mrs Gibson, another daughter, whom failing to her children equally. As regarded the remaining third, the trustees were directed to hold it for the liferent behoof of the truster's only other child, Mrs Millar, under deduction of the sum of £1800 advanced by him to her and her son, which £1800 was to form part of the free residue. On Mrs Millar's death the moneys held by the trustees for her liferent use were to be divided amongst her children in certain proportions, it being declared that these legacies were intended to vest at the truster's death.

Mrs Millar claimed legitim.

An action of multiplepoinding was then raised to determine the rights of parties. In this action the Court held (1) that in consequence of Mrs Millar having claimed legitim the income of the share of the residue destined to her and her family vested in the trustees during her lifetime, and was to be applied by them in compensation of the legitim received by her; and (2) that her children had a separate and independent interest in the fee of the provision, which was not affected by their mother's election except in so far as their share of the free residue might be required to contribute along with the other shares of the free residue to satisfy their mother's claim of legitim.

Thereafter the Lord Ordinary approved of a scheme of division, and ranked and preferred the claimants William Somerville Millar and Helen Lewins Millar, Mrs Millar's children, to the sum of £1978, 10s. 2d. in certain proportions, and directed the said principal sum of £1978, 10s. 2d. to be held by the trustees in terms of the settlement, and the income to be applied by them in compensation of the legitim received by Mrs Millar.

The following statement shows the figures dealt with:—

Actual divisible residue							£8,063	1	4
Divisible thus—
Legitim	£2,059	3	11
Less sum due by Mrs Millar to estate	1,085	17	9
				£973	6	2
Gibson's Trustees				2,692	12	6
Wallace family	£2,692	12	6
Less	274	0	0
				2,418	12	6
Millar family	£2,692	12	5
Less portion of £1800 advanced to them	714	2	3
				1,978	10	2
							8,063	1	4
If legitim had not been claimed—
						Actual divisible residue as before	£3,063	1	4

Add, as directed by trustees—

1. Sum to be deducted fromshare bequeathed to Mrs Millar and family	£1,800	0	0
Do, Wallace family	274	0	0
				2,074	0	0
				£10,137	1	4
Divisible as follows—
One third to Gibson's trustees				£3,379	0	5
Do. to Wallace family	£3,379	0	5
Less as above	274	0	0
				3,105	0	5
One-third to Millar family	£3,379	0	6
Less as above	1,800	0	0
				1,579	0	6
				£8,063	1	4
Difference—
Instead of	£3,379	0	5
Gibson's trustees got.	2,692	12	6
			Loss to Gibsons	£686	7	11
Instead of	£3,105	0	5
Wallace family got	2,418	12	6
			Loss to Wallaces	£686	7	11
But Millar family got	£1,978	10	2
Instead of	1,579	0	6
			Gain to Millar family	£399	9	8

On 6th November 1886 the Lord Ordinary ( M'Laren) pronounced the following interlocutor:—“The Lord Ordinary having considered the cause on the question of the appropriation of the

Page: 494↓

income of the share of the residue vested in the trustees, and directed by interlocutor of 3d November 1882 to be applied by them in compensation of the legitim received by Mrs Millar, Finds (1) that the said income is to be applied by Mr Snody's trustees half-yearly, or annually as it accrues, towards compensating such of the residuary legatees as have suffered pecuniary loss in consequence of the withdrawal of legitim from the trust-estate, until the amount of such loss and interest shall be wholly made up and compensated by such periodical payments: Finds (2), with respect to Mrs Millar's children, that according to the true construction of the trust-deed these claimants were entitled to a share of residue, burdened with their mother's liferent right, and under deduction of the sum of money stated by the truster to have been advanced by him to or on behalf of Mrs Millar and her son in his lifetime, but that Mrs Millar's legitim has suffered abatement to the extent of £1085, 17s. 9d. in consequence of the said advances being to that extent imputed to legitim, and that the share of residue falling to the children is thereby enlarged to a greater extent than it is diminished by the withdrawal of legitim: Finds therefore that the claimants, Mrs Millar's children, are not entitled to participate in the division of the said income: Finds (3), with respect to the claimants Mrs Gibson's trustees, that according to the scheme of division approved by the Lord Ordinary their loss through the withdrawal of legitim is £686, 7s. 11d., being the difference between £3379, 0s. 5d., the value of their interest, inclusive of the whole legitim fund, and £2692, 12s. 6d., the value thereof after giving effect to Mrs Millar's claim: Finds (4), with respect to Mrs Wallace's children, their loss through the withdrawal of legitim is the like sum of £686, 7s. 11d., being the difference between £3105, 0s. 5d., the value of their interest under the settlement, and £2418, 12s. 6d., the value thereof after giving effect to Mrs Millar's claim: Therefore appoints the said trustees to make payment to the claimants George Gibson and others, trustees of Mrs Gibson, and to Mrs Wallace's children, annually or half-yearly, and in equal shares, of the free surplus income of the trust, until the said two sums of £686, 7s. 11d. of loss, with interest, shall be wholly compensated or extinguished.”

Against this the claimant W. S. Millar reclaimed, and argued—That the £1085 was truly a debt due to the trust-estate by the party claiming legitim, and that it had nothing to do in any way with legitim. The loss falling on each of the other two claimants was one-third of the total loss, and the remaining third, or £686, 7s. 11d., was the amount of the loss sustained by Mrs Millar's family. This was a case in which the doctrine of compensation was clearly admissible.

Counsel for the respondents (Snody's trustees) were not called upon.

At advising—