Scottish Court of Session Decisions

By trust-disposition and settlement Mr James Hamilton, Glasgow, who died on 29th January 1892, conveyed his whole estate, heritable and moveable, to trustees for certain purposes. Among these was the provision of an alimentary liferent to his widow of the residue of his estate, restricted to one-half of the free yearly income and annual proceeds of the residue in the event of her second marriage. The fifth purpose was as follows—“After answering the purposes foresaid, I direct my trustees to hold and apply the said rest, residue, and remainder of my estate for behoof of the whole children of the marriage between me and the said Annie Hall M'Cas-land Yuill or Hamilton, and the issue of such as may have predeceased, per stirpes, and to pay or apply the free yearly proceeds thereof to or for behoof of such children, and the lawful issue of such of them as

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may have predeceased, per stirpes, until the youngest of said children shall have attained the age of twenty-one years, and upon that event to divide, pay, and convey the said rest, residue, and remainder of my estate among the children of the marriage between me and the said Annie Hall M'Casland Yuill or Hamilton who may then be in life, and that equally among such children then surviving, and the issue of such as may have predeceased, per stirpes, that is, such issue taking only the share which their parent would have taken if in life; declaring, notwithstanding what is before written, that it shall be in the power of my said trustees, should they think it judicious, but only with the special consent of my said wife, to advance to any of the beneficiaries in the fee of the residue of nay estate, in the case of males upon their going into business, and in the case of females on their being married, such sums, not exceeding. one-half of their then presumptive interests in my estate, as my said trustees may think proper, such advances being imputed as to account of the share of residue of the beneficiary receiving the same.”

The truster explained that he had by his settlement made no provision for Minnie Arthur Hamilton, his only child by a previous marriage, in respect that he had already invested for her the sum of £3000. There followed the declaration—“And I declare the provisions hereby made for my wife and the children of our present marriage, and the provisions previously made for the said Minnie Arthur Hamilton, to be in full of all that my said wife can claim in name of terce, jus relictæ, or otherwise, and of all that my said children can claim in name of legitim, portion natural, bairns' part of gear, or otherwise, in respect of my death.”

Mr Hamilton was survived by a widow, the said Mrs Annie Hall M'Casland Yuill or Hamilton, by the said Minnie Arthur Hamilton, and by two children of his marriage with the said Mrs Annie Hamilton. These two children died in pupilarity in May 1892. Miss Minnie Arthur Hamilton married Mr Naismith in 1895, and the widow Mrs Annie Hamilton married Mr Boyes in 1896.

The heritage left by the testator amounted in value to £1600, his moveable estate to £5407, 3s. 5d.

This Special Case was presented to determine certain questions arising under the trust-disposition and settlement by Mr Hamilton's trustees, first parties, Mrs Boyes and her husband, second parties, and Mrs Naismith and her husband, third parties.

The second parties contended, inter alia, that Mrs Boyes was entitled to a liferent of one-half of the income of the residue, and that if the fee of the residue did not vest in her children a morte testatoris it lapsed and fell into intestacy as at the date of the truster's death, and that she was accordingly entitled to her legal rights of terce and jus relictce therein. The third parties maintained that Mrs Naismith was entitled under intestacy, subject to the liferent provisions in the settlement, to the whole residue of the truster's estate. All parties were agreed that one-half of the fee of the residue was now available for distribution between Mrs Boyes and Mrs Naismith.

The following questions of law were submitted to the Court:— “1. Did the residue of the truster's estate vest under his trust-disposition and settlement a morte testatoris in the two children now deceased of the marriage between the truster and his second wife? If not, 2 ( a) Did the whole residue of the truster's estate, subject to the liferent provisions in favour of his widow contained in the said trust-disposition and settlement, fall into intestacy? and if so, ( b) Did it pass to the truster's heirs in intestacy as at the date of his death? Or, (c) Did it pass to the truster's heirs in intestacy as at the date of death of the survivor of the truster's said children? 3. In the event of question 2 (a) being answered in the affirmative—( a) Is the truster's widow entitled to her legal rights of terce and jus relictce out of any estate which may have fallen into intestacy in addition to the liferent provisions conferred on her by the truster's settlement? or (6) Does the whole of the residue of the truster's estate, subject to the liferent provisions contained in the settlement, fall under intestacy to his daughter by his first marriage Mrs Naismith?”

It is unnecessary to report the debate on the first and second questions.

On the third question, argued for the second parties—Assuming that there was intestacy as regards the residue, there could be no doubt the testator had expressly excluded his widow from participation in any benefit to be derived from his estate beyond the liferent provision; but the meaning of the will could not be imported into the distribution of what turned out to be intestate succession. The declaration was exclusively applicable to an effective disposition of the whole of the residue, which the testator must be presumed to have believed that he had made. [Lord M'Laren referred to Macfarlane's Trustees v. Oliver, July 20, 1882, 9 R. 1138.] There was nothing here making the exclusion from terce and jus relictce a condition of the widow taking the liferent provision; nor did her claim to her legal rights in any way interfere with the purposes of the settlement. There was no inconsistency between the claim set up by the second parties and the disposition of the estate under which she took her liferent. The widow was entitled to her conventional, or rather testamentary, provision out of the property disposed of, and to her legal provision out of property undisposed of— Buntine v. Buntine's Trustees, March 16, 1894, 21 R. 714; per Lord M'Laren, 721.

Argued for the third parties—The widow was not entitled both to her liferent provision and to her legal rights in the property undisposed of. If there had been no intestacy

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it would have been plain that the widow could not take both. It was quite true that children might take a provision in full of legitim and yet claim legitim ab intestato. The reason of that was because they were heirs. The fallacy of the second parties’ contention lay in supposing that a widow was an heir in the sense that children were. It was well-settled law that she was not— Tnglis v. Inglis, January 28, 1869, 7 Macph. 435. Lord M'Laron's remarks in Buntine, ut sup., proceeded on the assumption that there was no express exclusion of the legal rights. In Macfarlane's Trustees, ut sup., there was no question as to the rights of a wife; children alone were concerned; and there was no express exclusion of legitim.

At advising—