Scottish Court of Session Decisions

In the marriage-contract of his daughter Mrs Kathleen Georgina Arbuthnott or Rait, dated 6th August 1877, the Honourable Walter Arbuthnott bound and obliged himself, and his heirs, executors, and successors, to make payment at the first term of payment after his death to the marriage-contract trustees, for the ends, uses, and purposes therein written, “one just and equal third part of the whole property, heritable and moveable, real and personal, which shall belong to him the said Walter Arbuthnott at the time of his death.

In the marriage-settlement of his son Walter Charles Warner Arbuthnott, dated 14th January 1878, the Honourable Walter Arbuthnott covenanted with the trustees under the marriage-settlement “that in case the said Walter Charles Warner Arbuthhott, or any issue of the said intended marriage, shall be living at the death of him the said Walter Arbuthnott … then … he the said Walter Arbuthnott will, by his last will, or some codicil or codicils thereto, or some other instrument, well and effectually give, devise, and bequeath unto, or otherwise cause to be vested in the trustees, one full third part in value at least of the residue, after payment of his funeral and testamentary expenses and debts, of all the heritable and moveable property and other real and personal estate to which he the said Walter Arbuthnott, or any person or persons in trust for him, shall at his death be entitled, in possession, reversion, remainder, or expectancy, or otherwise howsoever … and that in case he the said Walter Arbuthnott shall not in any manner, and subject only as aforesaid, well and effectually give, devise, and bequeath unto, or otherwise cause to be vested in the trustees one full third part in value at least of such residue as last aforesaid, then one-third part in value at least of such residue as last aforesaid, shall immediately after the death of him the said Walter Arbuthnott, and at the cost of his estate, and subject only as aforesaid, be assured and transferred by his heirs, devisees, executors, and administrators, and all other necessary parties, if any, unto or otherwise vested in the trustees.”

Mr Arbuthnott, who was a domiciled Scotsman, died on 5th January 1891, leaving a last will and settlement dated 27th July 1886, and registered in the Sheriff Court Books of the county of Kincardine 14th January 1891. The said last will and testament was in the following terms—“I, the Honourable Walter Arbuthnott, residing at Hatton, in the county of Kincardine, in order to settle my affairs after my death, do hereby nominate and appoint my son-in-law Arthur John Rait, Esquire, of Anniston, late Major in the Royal Horse Artillery, Companion of the Order of the Bath, to be my sole executor, with full power to him to intromit with my whole moveable estate, and I direct my

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said executor in the first place, to make payment of my deathbed and funeral expenses, and of all my just and lawful debts; in the second place, to pay and perform the obligations undertaken by me in antenuptial contract of marriage between the said Arthur John Rait and my daughter Mrs Kathleen Georgina Arbuthnott now Rait; in the third place, to pay and perform the obligations undertaken by me in the marriage-settlements entered into on the marriage of my son Walter Charles Warner Arbuthnott and Miss Emma Marion Hall Parlby; in the fourth and last place, in regard to the residue or remainder of my whole means and estate, I hereby direct and appoint my said executor to pay to my said wife the free income thereof during the whole days of her life, and after her death or after my death if she shall predecease me, I leave and bequeath the liferent of the said residue or remainder to the said Walter Charles Warner Arbuthnott during the whole days of his life, and in regard to the fee of the said residue or remainder, I hereby leave and bequeath the same to the child or children of my said son, with power to my said son to apportion the said fee amongst his children in such manner as he may think right, and failing such apportionment, the said fee shall be payable amongst the said children equally, share and share alike.” Mr Arbuthnott left no other testamentary writing and no heritable or real estate.

On the death of Mr Arbuthnott, Lieutenant-Colonel Arthur John Rait accepted the appointment in his favour as executor of the deceased, and was duly confirmed. The testator was survived by his wife the Honourable Anna Maria Ottley or Arbuthnott and two children, the said Walter Charles Warner Arbuthnott, Major in the Royal Artillery, and the said Mrs Kathleen Georgina Arbuthnott or Rait, both of whom had issue. The testator's widow died intestate on 17th March 1891.

In these circumstances a question arose between the testator's executor and Major Arbuthnott as to the effect of the bequest in favour of the latter contained in the fourth purpose of Mr Arbuthnott's last will and testament. The executor maintained that the effect of the said bequest was to give Major Arbuthnott a mere liferent interest in the residue or remainder of Mr Arbuthnott's means and estate, and that it was his duty as executor of the deceased to retain the said residue and remainder, paying the income thereof to Major Arbuthnott, and holding the fee for behoof of Major Arbuthnott's children. On the other hand, Major Arbuthnott maintained that the terms of the said bequest in his favour were such as to entitle him to the fee of the said residue or remainder, and that the executor was bound to hand over to him the said residue or remainder as his own absolute property, or alternatively, that if he Major Arbuthnott had no right to the fee of the said residue and remainder, the executor was not entitled to retain the said residue and remainder, but was bound to hand over the same to Major Arbuthnott for behoof of himself and his children, according to their respective rights of liferent and fee.

Further, in the event of the said bequest conferring on him merely a liferent right, Major Arbuthnott maintained that in addition to the trustees under his marriage-settlement being entitled, by virtue thereof, and of his father's will, to receive one-third of his father's estate, he himself was entitled to claim legitim out of the said estate remaining, after deducting the amounts payable under the obligations undertaken by his father in his own and his sister Mrs Rait's marriage-contracts. The executor on the other hand maintained that any claim for legitim by Major Arbuthnott was excluded by the provision made by his father for him in his said marriage-settlement, and in any view, that in computing the amount of Major Arbuthnott's legitim, the said provision made by his father in his marriage-settlement must be imputed thereto, and that as this provision exceeded the amount which could be claimed as legitim out of the whole estate of Mr Arbuthnott, no claim for legitim existed.

For the decision of these questions a special case was presented for the opinion and judgment of the Court. The first party to the case was Lieutenant-Colonel Arthur John Rait, the truster's executor; the second party was Major Walter Charles Warner Arbuthnott.

The questions of law were—“(1) Whether the bequest in favour of the second party, contained in the fourth purpose of the said last will and testament, confers upon him a right to the fee of the residue and remainder of the estate of the Honourable Walter Arbuthnott? (2) In the event of the foregoing question being answered in the negative, Whether the first party is bound to retain the said residue and remainder in his own hands until the death of the second party, paying to the latter only the income thereof? or, Whether the first party is bound to pay over said residue and remainder to the second party for behoof of himself and his children according to their respective rights, and if so, on what terms and under what conditions, if any? (3) Whether the second party, in addition to the performance of the obligations undertaken by the Honourable Walter Arbuthnott in his, the second party's, marriage-settlement, is entitled to legitim out of the residue of his father's estate remaining after performance of the obligations contained in the second parties' marriage-settlement, and in the marriage-contract of the first party and Mrs Kathleen Georgina Arbuthnott or Rait? (4) In the event of the third question being answered in the affirmative, Whether the second party, on claiming legitim, is bound to impute thereto the provision made for him by his father, the said Honourable Walter Arbuthnott, in his, the second party's, said marriage-settlement?”

Argued for the first party—(1 and 2) The

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second party had no right to the fee of the residue under the will. The case of Froy's Creditors, November 25, 1735, M. 4262, did not rule the present. That case only applied where there was in the will either a direct conveyance to a parent in liferent and his children not named in fee, or where the trustees were ordered in the will to convey or pay. Here there was no divestiture of the granter, the fee remained hæreditate jacente. There was also a power of apportionment given to the father, which was inconsistent with the father taking the fee. The expressions used in the will clearly showed that it was the intention of the testator that the second party should get only the liferent of the residue, and the intention of the testator must prevail. Opinion of Lord Chelmsford in Ralston v. Hamilton, July 19, 1862, 4 Macq. 419. There was here a trust not to pay but to hold, and the case fell under the rule laid down in Scott v. Napier, May 14, 1827, 2 W. & S. 550. (3 and 4) If the second party got the third of the estate in terms of his marriage-settlement and the will of the testator, he was not also entitled to legitim out of the residue. His legal rights were impliedly excluded since the intention of the settlement was universal, and provisions had been made for him in the settlement. Where a father bound himself to make provision for a son, it was a fair presumption that he intended that provision to come in place of his son's legal rights, and the son was not entitled to get the benefit of the provision and also to claim legitim.

Argued for the second party—(1 and 2) The destination here gave the fee of the residue to him. The case was ruled by Froy's Creditors. The only cases outside the rule there laid down were (1) where such a word as “allenarly” was used in the will, and (2) where there was a continuing trust for the purpose of keeping the liferent apart from the fee. Here no such word as “allenarly” was used, and there was no provision made for a continuing trust. It was a direct bequest amounting to a direction to pay—Opinion of Lord Westbury in Ralston v. Hamilton, July 19, 4 Macq. 405; Bell's Prin., sec. 1710, et seq., and cases there quoted; Ross's Leading Cases (Land-Rights), iii. 602, et seq.; Beveridge's Trustees v. Beveridge, July 20, 1878, 5 R. 1116. (3 and 4) The second party was entitled to legitim out of the residue. The testator had undertaken an obligation in the marriage-settlement of the second party. This obligation was a debt on his estate. The testator having in his will fulfilled this obligation, did not prevent the second party claiming his legal rights, and there was no circumstance calling either for election or collation— Breadalbane v. Chandos, August 16, 1838, 2 S. & M. 377; Somerville's Trustees v. Dickson's Trustees, June 3, 1887, 14 R. 770.

At advising—