Scottish Court of Session Decisions

Andrew Stewart, solicitor, Glasgow, and others, the trustees and executors of the late John Watson, warehouseman, Glasgow, acting under his trust-disposition and settlement dated 28th December 1891, and relative codicils, first parties; Mrs Jane Bruce Nicoll or Watson, widow of the said John Watson, second party; Joseph Watson, eldest son of the said John Watson, third party; and John Alexander Watson and Jeanie Watson, the whole remaining children of the said John Watson, both being in minority, fourth parties, brought a special case for the determination of, inter alia, the second party's rights under the deceased's testamentary writings.

By his trust-disposition and settlement the testator provided, inter alia—“( Fourth) I direct my trustees to hold the whole residue of my means and estate, and from the income thereof to pay to my said wife, or to others for her behoof, the sum of Five hundred pounds sterling per annum, or such other sum as my trustees in their discretion shall consider reasonable, so long as she remains my widow, for the maintenance of herself and the maintenance, education, and upbringing of such of my children as may reside in family with her, payable such annual sum half-yearly, quarterly, or in such other manner and in such sums as to my trustees shall appear most convenient and most beneficial to all concerned …: ( Fifth) I direct my trustees during my said wife's lifetime and viduity, and after each year satisfying or providing for the allowance directed to be paid under

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article fourth hereof, to pay or apply the remaining income of my trust means and estate to or for behoof of my whole children equally, and the survivors and survivor of them …; ( Sixth) In the event of the death of my said wife or of her entering into another marriage, I provide that payment of the provision under article fourth hereof shall ipso facto and thereafter cease, and I direct my trustees thereupon to include such provision as income to be dealt with under article fifth hereof, and to deal with the same accordingly; ( Seventh) I direct my trustees after the death of my said wife, or on her re-marriage should she marry again, … to hold the whole residue and remainder of my means and estate for behoof of my whole children, … and to pay the share falling to each beneficiary under this provision on his or her attaining the age of 25 years complete: And I provide and declare ( first) that the foresaid annual provision to my said wife shall be purely alimentary, and shall not be arrestable or assignable or capable of anticipation or affectable by her debts or deeds or the diligence of her creditors …; ( third) that the provisions herein conceived in favour of my wife and children are provided and shall be accepted by them respectively in full satisfaction of all claims of terce, jus relictce, legitim, and all other claims competent to them or any of them by or through my death…”

By a codicil dated 16th February 1897 the testator further provided as follows:—“… And I hereby specially provide and declare ( first) that my trustees shall have power in their absolute discretion to reduce or to increase or to vary the amount of the provision contained in the fourth purpose or article of my said trust-disposition and settlement for behoof of my said wife; and ( second) that in the event of my said wife or children, or any of them, claiming or having claimed for them their legal rights in respect of my death, the person or persons so claiming or having claim made for them shall respectively for themselves and their issue, children, and heirs, executors, and representatives whomsoever, ipso facto and absolutely amit and forfeit all right, title, and interest whatsoever under or in respect of my said trust-disposition and settlement and this codicil to the same extent and effect as if such persons claiming or having claim made as aforesaid had predeceased me without issue. …”

The estate left by the testator consisted of

1.	Heritable properties valued at	£ 4,650	0	0
2.	Bonds and dispositions in security over various heri table properties in Glasgow	22,000	0	0
3.	Moveable property	3,967	11	6
	Making gross estate amounting to	£30,617	11	6
	The debts due by the testator amounted to	528	0	2
	Leaving net estate of	£30,189	11	4

subject to Goverment duties. The annual income of the estate amounted to £900 or thereby.

The case stated—“At the request of the second party the first parties submitted to her for consideration a statement of the whole estate showing approximately her legal rights, but she declined either to claim her legal rights or to accept the testamentary provision in her favour. The first parties were willing and offered to pay the second party an allowance at the rate of £500 per annum, but the second party, after consultation with her own law agent, requested that the allowance should be at the rate of £490 per annum, lest by acceptance of the full £500 she should be committed to acceptance of the testamentary provisions made for her.”

The first question submitted to the Court was—“Is the second party bound now to declare her election either to accept the testamentary provision in her favour under the said trust-disposition and settlement and codicils, or to claim her legal rights?”

Argued for the first parties—The widow was bound to make her election at once. It was not necessary for the trustees to aver special reasons for an immediate election. The material for her choice had been offered to her, and the election must be made even though contingencies attached to some of the provisions in her favour—Fraser, Husband and Wife, vol. ii, pp. 1000 and 1032; Keith's Trustees, July 17, 1857, 19 D. 1040.

Argued for the second party—Present election was not only unnecessary, it was impossible. The widow could not ascertain the value of her provisional rights, which were entirely at the mercy of the trustees— Turnbull v. Cowan, March 17, 1848, 6 Bell's App. 222, per L.C. Cottenham, at pp. 237 and 238. That distinguished this case from Keith's Trustees, supra, where the contingency had an ascertainable value ( per Lord Ivory, at p. 1061). Here no one else could show any prejudice from the postponement of election— Keith's Trustees, supra, per Lord President M'Neill, at p. 1057. Further, no division of the estate was contemplated by the testator until his eldest child reached the age of twenty-five, and only then if that event took place after the death or re-marriage of his widow.