Scottish Court of Session Decisions

Mrs Agnes Jane Goodsir or Macfarlane or Gunn died on 17th May 1895, leaving a trust-disposition and settlement dated 11th August 1893. By the third, fourth, and fifth purposes of the deed she left the free residue of her means and estate to her three sons in liferent and their children in fee, in the following proportions:—four-tenths for Malcolm David Macfarlane and his children, three-tenths for Alexander Goodsir Macfarlane and his children, and three-tenths for William Macfarlane and his children. The foregoing provisions in favour of the three sons were declared to be in full of their whole claims against the truster's estate, and any son repudiating the settlement was to forfeit for himself and his issue all claims to a share of the truster's estate, and have right only to his legal provisions.

Mrs Gunn was survived by six children, viz., the three sons named in the deed, and three daughters, Mrs Agnes Goodsir Macfarlane, Mrs Helen Macfarlane or Horne, and Miss Eliza Macfarlane.

Before the residue of the trust-estate had been ascertained Malcolm David Macfarlane died without issue on 25th September 1895 leaving a trust-disposition conveying his whole estate to trustees. His trustees repudiated the settlement, and claimed his legal rights, The three daughters of the truster also claimed legitim. Alexander Goodsir Macfarlane and William Macfarlane accepted the provisions in their favour in the truster's settlement as in full of their claims against her trust-estate.

Questions as to the division of the trust-estate having thus arisen, Mrs Gunn's trustees on 19th August 1896 raised an action of multiplepoinding for their determination.

During the dependence of the action Alexander Goodsir Macfarlane died on 6th March 1898 without leaving issue, and an executor-dative was appointed to administer his estate. By the death of Malcolm David Macfarlane and Alexander Goodsir Macfarlane, both without leaving issue, seven-tenths of the capital of the truster's estate became undisposed of by her settlement. William Macfarlane, the remaining son of the testator, was a widower, and had two sons both in pupillarity.

Claims in the multiplepoinding were lodged by Mrs Gunn's trustees, the marriage-contract trustees of Mrs Agnes Goodsir Macfarlane on her behalf, the marriage contract trustees of Mrs Helen Macfarlane or Horne on her behalf, Miss Eliza Macfarlane, the trustees of Malcolm David Macfarlane, the executor-dative of Alexander Goodsir Macfarlane, and William Macfarlane.

By a series of interlocutors, the last of which was dated 2nd December 1899, the Lord Ordinary ( Kincairney) ranked the claimants in the trust-estate by findings which by implication showed the following results:—The three daughters of the testator and the trustees of Malcolm David

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Macfarlane were found entitled to legitim out of the whole estate: Three-tenths of the residue of the estate, after payment of the above legitim, was to he held by Mrs Gunn's trustees for behoof of William Macfarlane in liferent and his children in fee, William Macfarlane and Alexander Goodsir Macfarlane's executor-dative were found entitled to legitim out of the estate subject to fulfilment of the trust purposes so far as still subsisting, and seven-tenths of the residue of the estate after payment of the above legitim, which had fallen into intestacy by reason of the deaths of Malcolm David Macfarlane and Alexander Goodsir Macfarlane without issue, was divided equally among the six children of the truster or their representatives as intestate succession.

Mrs Gunn's trustees reclaimed, and argued—The Lord Ordinary had found that the three-tenths of the residue which they were to hold for William Macfarlane and his children was subject to deduction of the legitim claimed by the three daughters and the trustees of Malcolm David Macfarlane. They maintained that the three-tenths was not subject to this deduction. Mrs Gunn had by her will disposed of her whole estate including the legitim fund, and William Macfarlane and his children were entitled to three-tenths of the estate under deductions of debts as distinct from legitim, if the amount of the estate rendered it possible for them to get such proportion and also for the trustees to pay the legitim. By the death of Malcolm David Macfarlane and Alexander Goodsir Macfarlane without children the trustees had now ample funds, out of which they could pay the legitim demanded without encroaching on the three-tenths. Claims for legitim could be paid out of intestate succession— Hamilton's Trustees v. Boyes, May 27, 1898, 25 R. 899, aff. July 28, 1899, 36 S.L.R. 973. The situation was now the same as if Malcolm and Alexander had predeceased the testator and partial intestacy had resulted at the time of her death. In any event the principle of equitable compensation required that, if the three-tenths were reduced by reason of claims for legitim, it should be increased to the same extent from any estate of the testator's which had not been disposed of.

Argued for the claimants the three daughters and their representatives and the trustees of Malcolm David Macfarlane—The reclaimers' present argument had not been stated before the Lord Ordinary and was unsound. The truster had given William Macfarlane and his children three-tenths of the free residue of her estate, i.e., after debts had been deducted. Claims for legitim were debts— Tait's Trustees v. Lees, July 8, 1886, 13 R. 1104. So that William Macfarlane and his children were only entitled to three-tenths of the value of the estate after legitim had been deducted. The estate out of which the trustees now proposed to pay the legitim had fallen into intestacy after the date of the truster's death, and it was impossible to maintain that legitim which was due at the date of death could be taken from such a source. The principle of equitable compensation did not apply. It only applied where the doctrine of forfeiture also applied. They did not forfeit by claiming legitim any part of the testator's estate which by reason of events subsequent to her death fell into intestacy.

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