Scottish Court of Session Decisions

Alexander Whitson Scott and others, trustees under the trust-disposition and settlement of the late James Scott, manufacturer, Dundee, first parties; Mrs Bella Stewart Dawson or Scott, widow and executrix of Alfred Thomas Scott, a son of the truster, second party; James Eric Dawson Scott, only child of Alfred Thomas Scott, third party; and David Scott and others, children and grandchildren of the truster, fourth parties, presented a Special Case for the opinion and judgment of the Court of Session.

The following narrative is taken from the opinion of Lord Dundas, infra:—“Mr James Scott, manufacturer, Dundee, died on 26th January 1908. He was twice married. On the occasion of his first marriage, in 1850, he made no marriage contract; his wife died in 1873; there were five children, four of whom survived their father and still survive, while one predeceased him, leaving a child who still survives. Mr Scott married again in 1875. By antenuptial marriage contract he bound himself, his heirs, executors, and successors, to provide and secure one-tenth part of his free personal estate as at the day of his death to the children of

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this marriage, which tenth part should be divisible among such children equally at his death, unless he should otherwise direct by writing under his hand; which provisions in favour of said children were declared to be in full satisfaction to them of all bairns' part of gear, legitim, portion natural, third or half of moveables, and all that they could in any way or manner claim or demand by or through his death. Mr Scott's second wife died in 1898. There were ten children of the marriage, all of whom survived their father. One of them, Alfred Scott, died on 16th February 1908, leaving a widow, who survives, and a child who is still in pupillarity. He left a settlement by which he made over to his wife his whole means and estate as her own absolute property. Mr James Scott left a trust-disposition and settlement, dated in 1903, by which he conveyed to trustees the whole estates and effects, of whatever description and wherever situated, belonging to him at the time of his death. His estate when he died amounted to £372,808, of which about £4100 was heritable. The first purpose of the trust was the usual one, for payment of all his just and lawful debts. By the third purpose he bequeathed certain legacies to his children by both marriages, and made provision for his family residences being kept for the use of his children living in family with him at the time of his death, and of means for the comfortable maintenance, support, and education, &c. of his children. With regard to the residue of his estate, Mr Scott provided—‘In the sixth place, on my youngest child attaining the age of twenty-one years, I direct and appoint my trustees, with all convenient speed, and as and when they are in a position to do so, to divide the rest, remainder, and residue of my means and estates, both heritable and moveable, into three equal shares, which my trustees shall dispose of as follows—They shall pay and convey one of said shares to and among the children of my first marriage and the survivors and survivor of them equally between and among them, the lawful issue of any of them predeceasing taking the parent's place and share; and with regard to the other two shares, I direct my trustees to pay and convey the same to and among the children of my second marriage and the survivors and survivor of them equally between and among them, the lawful issue of any of them predeceasing taking the parent's place and share.’ The youngest of Mr Scott's children attained majority on 30th November 1911. By the last purpose of his settlement Mr Scott provided and declared that the provisions conceived in favour of his children were and should be accepted of by them respectively in full satisfaction to them of all legitim and bairns' part of gear, and also of all conventional provisions whatsoever made by him in and under any marriage contract or otherwise, and of every other claim or provision whatever competent to them in any manner of way by or through or in the event of his death.

[His Lordship dealt with the first two questions in the case, finding that under the terms of the sixth purpose of the trust-disposition and settlement there was no vesting until the youngest child attained majority; that Alfred Scott therefore did not acquire a vested right; that his child was entitled to the share he would have taken had he survived; and that his widow as his executrix was entitled to his share of the fund settled in the marriage contract.]

The party of the second part claimed, as trustee and executrix and universal legatory of the said Alfred Thomas Scott, to have a right to his share of the provision made by the said James Scott in and by his said marriage contract to the children of his second marriage, and the parties of the fourth part maintained that the whole sum so payable to the party of the second part must be paid exclusively from the share of residue destined by the trust-disposition and settlement of the said James Scott to the said Alfred Thomas Scott, and claimed by each of the second and third parties; and that the other shares of residue could not be diminished or affected by the said payment. This contention was disputed by the party of the third part, who maintained that any sum payable to the party of the second part in virtue of her claim must be paid from the general estate of the said James Scott, and must be borne rateably by all those interested in the residue thereof.

This question of law was, inter alia, submitted— “Does the said Alfred Thomas Scott's tenth share of the marriage provision in question fall to be paid exclusively from the share of residue to which the third party is entitled? or, Is the same payable from the general estate of the said James Scott?”

Argued for the third party—The residue divisible under the sixth purpose of the will was the balance of the estate after payment of the testator's debts and legacies; and the marriage-contract provisions were debts. The provision in the last clause of the will which excluded the children from taking both under the marriage contract and under the will did not apply either legally or equitably to the case of grandchildren so taking. Here there could be no election, because the claims of the second and third parties were totally independent of each other, being constituted under different deeds and in different form. There could only be election where there was a plurality of rights in the same person which that person had to elect between. Here there was only one right in each party—Story's Equity Jurisprudence (2nd ed.), sec. 1075; M'Laren's Wills and Succession, sec. 286; Hewit's Trustees v. Lawson, March 20, 1891, 18 R. 793, 28 S.L.R. 528; Douglas' Trustees v. Douglas, June 27, 1862, 24 D. 1191, per Lord Justice-Clerk (Inglis) at p. 1207 and Lord Benholme at p. 1205; Rose v. Rogers, 1870,

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39 L. J. Oh. 791; Hewitt v. Jardine, 1872, L.R., 14 Eq. 58.

Argued for the fourth parties—This was not a question of election at all. It was simply a question of what did the testator intend the beneficiary should take, and that must be determined by a construction of the terms of the will. By the sixth clause the testator provided that grandchildren should take their “parent's place and share,” and by the last clause he provided that the testamentary provisions should be accepted by the children in full satisfaction of the marriage-contract provisions. Therefore since Alfred Thomas Scott could not take under both the marriage contract and the will, the parties claiming through him could not together claim more than he could— Fisher v. Dixon, July 1, 1833, 6 W. & S. 431; Jack, &c. v. Marshall, January 21, 1879, 6 R. 543, 16 S.L.R. 326; Snodie's Trustees v. Gibson's Trustees, February 9, 1883, 10 R. 599, 20 S.L.R. 392; Sinclair's Executors v. Rorison, December 11, 1852, 15 D. 212, per Lord President (M'Neill) at p. 216; Gray's Trustees v. Gray, 1907 S.C. 54, 44 S.L.R. 39. Rose v. Rogers (cit. sup.) was different, because that was a question of a debt.

[On a question of vesting, which is not reported, counsel for the parties referred to the following authorities — Young v. Robertson, February 14, 1862, 4 Macq. 314; Fyfe's Trustees v. Fyfe, February 8, 1890, 17 R. 450, 27 S.L.R. 329; Taylor's Trustees v. Christal's Trustees, June 24, 1903, 5 F. 1010, 40 S.L.R. 738; Macdonald v. Hall, July 24, 1893, 20 R. (H.L.) 88, 31 S.L.R. 279.]