Scottish Court of Session Decisions

The trust-disposition and settlement dated 21st March 1889 of John Laing, Granton Lodge, Aberdeen, contained, inter alia, the following directions to his trustees—“I leave to my reputed son John Laing the sum of one hundred pounds, to be paid to or laid out for his benefit by my trustees at their discretion.” “(Tenth) I appoint that the provisions herein contained in favour of my children, or any of them, or of the issue of my children or any of them, are and are to be accepted by them severally in full satisfaction of all claims of legitim, bairns' part of gear, and all and every claim against me and my estate at the instance severally of my said children or issue, or of the parents of such issue.”

John Laing, the truster, was survived by his son, the beneficiary John Laing, who however died before the legacy bequeathed to him by his father had been paid. Mrs Elizabeth Melvin or Laing, the widow of John Laing junior, was confirmed as his executrix-dative, on 20th July 1894.

An action was raised by her in the Sheriff Court of Aberdeen against the trustees of John Laing senior, for payment of the legacy of £100 bequeathed by the truster to her late husband.

The pursuer averred that she had repeatedly demanded payment of the legacy, but that the defenders had refused to pay it.

The defenders averred that they were willing to pay the legacy if the pursuer would grant them a proper discharge; that the pursuer had intimated to them shortly after her husband's death that she declined to homologate the terms of the settlement, on the ground that she claimed that her husband was a legitimate son of John Laing senior, and that as his executrix she was entitled to a claim for legitim. They produced a letter from the pursuer's agents dated 23rd January 1894 to the above effect, and warning them that if they divided the estate it would be at their own risk.

They pleaded—“(1) The pursuer having declined to homologate the settlement of the deceased, and having set up claims antagonistic thereto, she is only entitled to payment of the legacy bequeathed to her husband in exchange for a duly executed discharge, discharging the defenders and the estate of deceased of all claims at her instance thereon.”

On 9th February 1895 the Sheriff-Substitute ( Robertson) repelled the defences, and decerned against the defenders for payment of the legacy.

The defenders appealed to the First Division of the Court of Session, and argued— The question of legitimacy having been raised by the pursuer, they were not in safety to pay her the legacy. They only asked her to make election, for she could only take the legacy on the footing that her husband was illegitimate.

Argued for the pursuer—The trustees were not entitled to demand anything but a simple receipt, which she was willing to give, this not being the case of a residuary legatee —Fleming v. Brown, February 6, 1861, 23 D. 443. She had no power in any case to discharge the children's claim. The Court could not qualify the interlocutor of the Sheriff so as to make it meet the appellants' views.

At advising—