Scottish Court of Session Decisions

By his trust-disposition and settlement the late Dr George Harper, who died on 7th October 1886, conveyed his whole estate to trustees for certain purposes therein mentioned. He directed that his wife Mrs Ellenor Maria Campbell or Harper should during her lifetime be his sole executrix and should have a liferent of his whole estate.

In the testing clause the following direction occurred:—“Declaring that it is further my will and desire that all moneys at my death in the house or in the Bank of Scotland or the City Bank of London, or in any other bank or banks in my name, shall be paid over to the said Mrs Ellenor Maria Campbell or Harper for her own exclusive use and behoof immediately after my death.”

By a codicil Dr Harper directed his trustees, inter alia, “after providing for all my just and lawful debts, deathbed and funeral expenses, and others, as mentioned in the first purpose of the foregoing trust-disposition and settlement, and after payment to my wife Mrs Ellenor Maria Campbell or Harper of all moneys in the house or in the Bank of Scotland or the City Bank of London, or in any other bank or banks in my name, as provided by a clause to that effect inserted in the testing clause of said trust-disposition and settlement, and which clause is hereby confirmed, but before setting apart the residue of my estate to be liferented by my said spouse, to pay” certain legacies to the parties therein named.

Dr Harper's moveable estate amounted to about £10,300. It included, inter alia, the following items:—

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Cash in the house £20.

Balance on account-current with Bank of Scotland, £467, 14s. 7d.

Deposit-receipt with the Queensland National Bank, Limited, for £2000, repayable four years after its date, bearing interest at 5 per cent.

£500 in debenture by the National Mortgage and Agency Company of New Zealand.

The said Mrs Ellenor Maria Campbell or Harper claimed as falling under the absolute bequest to her under said settlement, and took possession of, the cash in the house, the sums standing at the deceased's credit with the Bank of Scotland, and the deposit-receipt with the Queensland National Bank, Limited.

In 1902 Mrs Harper died.

Questions having been raised as to whether the deposit-receipt for £2000 was carried by the above-quoted bequest to Mrs Harper, the present special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) Dr Harper's trustees; and (2) the trustees under the last will and settlement of Mrs Harper.

The questions for the opinion of the Court were (in addition to another which it is not necessary to refer to)—“(1) Did the £2000 contained in the deposit-receipt with the Queensland National Bank, Limited, fall under the bequest contained in her husband's testamentary writings to Mrs Harper? or (2) Did the same form part of the trust estate under her management, as trustee and executrix foresaid, and fall, after payment of debts, &c., and legacies, to be dealt with in terms of the provisions of the testamentary writings in regard to residue?”

Argued for the first parties—The bequest to Mrs Harper did not carry the deposit-receipt. It was confined to money in bank ejusdem generis with money in the house or money on current account. The deposit-receipt was an investment like the debenture of the New Zealand company. Supposing Dr Harper's whole estate had consisted of deposit-receipts in Australian banks, could it have been said that the bequest operated as a universal legacy to his wife?

Counsel for the second parties were not called upon.