Scottish Court of Session Decisions

Miss Elizabeth Crombie Duthie died on 30th March 1885, leaving a trust-deed of settlement dated 7th July .1877 with several codicils thereto. By one of these codicils of 27th September 1877 Miss Duthie, after directing her trustees to pay certain legacies, bequeathed the residue of her estate to a number of individuals named equally, the said shares of residue to vest at the death of the testatrix, “declaring that the share falling to any of the said residuary legatees who are females and may be married at the time of my death shall be held by my said trustees, or invested for their behoof, exclusive of the jus mariti of their then or any other husband they may afterwards marry, and the annual produce of said share of residue paid to said legatee during her life, and at her death the principal sum shall be paid to her heirs or executors.”

In winding up the estate a question arose as to the effect of this declaration regarding the shares of the residue falling to the females who were married at the time of the death of the testatrix, and a special case was accordingly presented.

The second party, who was one of such female residuary legatees, maintained that it imported an absolute right of fee, which became vested in her, exclusive of the jus mariti of her husband, as at the death of the testatrix, and that she was consequently entitled to have the capital sum falling to her at once paid over in cash.

The trustees, who were the first parties, considered that they were not in safety to comply with the demand of the second party, but that they were bound to hold or invest the shares of residue bequeathed to female married legatees for their behoof, and to pay over to them only the annual produce of such shares respectively during the lifetime of the party entitled thereto.

The following were the questions—“(1) Are the parties of the first part entitled or bound to make immediate payment in cash to the party of the second part of the share of residue bequeathed to her under the said trust-deed of settlement and codicils? Or (2) Are the parties of the first part bound to hold the capital of the said share of residue until the death of the second party, paying to her in the meantime the annual proceeds, and on her death to make over the capital to her heirs or executors?”

Argued for the first parties—The case was ruled by the recent case of Christie's Trustees, July 3, 1889, supra p. 611. It was true that there was here an alternative given to the trustees, either of holding or of investing the shares of married female residuary legatees, but the alternative of investing was ruled adversely to the second party by the former case of Duthie's Trustees v. Kinloch, June 5, 1878, 5 R. 858. There was here no direction to pay, nor anything that could be construed into a direction to pay, and consequently the case was not within the rule of Allan v. Allan's Trustees, December 12, 1872, 11 Macph. 216, and the recent case of Jamieson v. Lesslie's Trustees, May 28, 1889 supra p. 538.

The second party was not called on.

At advising—