Scottish Court of Session Decisions

Lord M'Laren—In this action the pursuer claims legitim with the legal interest thereof from 26th July 1883, being the date of his father's death. I am not sure whether this is an irrevocable election on his part to take legitim in preference to the heritable estate; but in any view it is proper that the value of the legitim should be Judicially ascertained, so that the pursuer may be in a position to consider his course, if it is still open to him to do so. The Lord Ordinary has decerned in his favour for the principal sum of £16,268, 18s. 9d., with interest at the rate of five per cent. as concluded for—that is, for a period of nearly thirteen years reckoned from the father's death. This interest would amount to about 65 per cent., or very nearly two-thirds of the principal sum sued for. His Lordship, in a brief note, gives the weight of his opinion in favour of applying a lower rate of interest to such cases, but states that, sitting alone, he feels bound by practice to allow interest at 5 per cent.

The facts which raise this question may be stated in a sentence. Sir Charles Ross's father left his unentailed lands to his son, burdened with a liferent in favour of his widow, and he left all his personal estate to his widow, who was also, in the events which happened, sole trustee and guardian of her pupil son. It could not be known at the time of the father's death whether after the son should come of age it would be more for his advantage to take the heritable estate or the legitim. The result might depend on whether Lady Ross was alive at her son's majority, and on her expectation of life at that time. Even if a good actuarial estimate could have been made, Lady Ross had not the power to elect for her son, and the son had not the power to elect for himself effectually until he became of full age, because the election to take legitim involved the alienation of the heritable estate, and such an election might have been reduced on the ground of minority and lesion.

In such circumstances all that could be done by Lady Ross for the conservation of her son's rights was to keep the personal estate, or at least one moiety of it, safely invested for his benefit should he choose to claim it at the proper time. This has been done, and on the mere statement of the facts it is evident that Lady Ross was in the position of a depositary of this fund, having no duty in relation to it except that of the safe-keeping of the principal sum, and of such interest as it might produce when safely invested. If it could be shown that the fruits of the personal estate amounted to five per cent. per annum, or 65 per cent. in the period of thirteen years, I see no reason to doubt that the pursuer would be entitled to what he claims. But his case is that he is entitled to receive five per cent. as on a debt, while Lady Ross contends that she is only liable for such interest as the legitim fund, if safely invested, could produce. It is assumed that four per cent. may be taken as representing on a fair estimate the actual income or produce of the fund.

Now, it is undoubtedly the fact that interest at 5 per cent. has been generally allowed on claims of legitim and on claims by a wife's representatives to a share of goods in communion under a law which is now repealed. The case of a claim by a wife's representatives for a share of goods in communion could not raise a question of election, and is not very much in point. But when the decisions are examined with reference to interest on legitim claims, it will be found that they are no more conclusive than cases of the other class, because, with the exception of the recent case of Bishop's Trustees v. Bishop, they are all cases where there was either no election or where the election might have been made at the opening of the succession. Now, it may very well be that if a son or daughter is disinherited and has no claim except under the law of legitim, the testamentary representatives ought to be treated as in mora for not immediately settling the claim. In such a case interest would be due as in any other case of the withholding payment of a just debt. The same principle may be held, but I think with less reason, to apply to a case where there is an election between legal and testamentary provisions, but where the claimant is of age and may be called on to declare his election.

In the case of Bishop, 21 R. 728, the vesting of the rights under the father's will was suspended for the period of one year after the father's death, and the action was heard in Court in the following year. The question of the rate of interest was very unimportant, because it was only the interest of one year, and the Court simply followed the case of M'Murray without, as far as we can judge from the report, having its attention drawn to the peculiarity of the case, where the action of the trustees is suspended and the election cannot be immediately made. But in M'Murray's case the question was whether the child claiming legitim was entitled to profits which it was assumed would exceed 5 per cent. per annum. The question was not raised whether the liability of the persons administering the legitim fund might be limited to the interest obtained from a safe investment, and this question could not well be raised because the facts were that the money had been invested in trade and had produced more than 5 per cent. It therefore appears to me that we are in a position to consider the question I have stated without being bound by authorities, although of course the decisions referred to may be very good authority for giving 5 per cent. in a case where legitim is withheld from a child who is entitled to it.

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