Scottish Court of Session Decisions

John Charles Stewart of Kinlochmoidart, Inverness-shire, and others, the testamentary trustees of the late Francis Pott Stewart, Craigweil, Ayr, who died on 26th November 1890, leaving his whole estate, heritable and moveable, to them as trustees, first parties; James Todd Stewart and Andrew Falconer, testamentary trustees of the late John Stewart, a brother of the testator, second parties; Frederick Campbell Stewart and William Stewart Fraser, testamentary trustees of the late Robert Stewart, another brother of the testator, third parties (Robert and his brother John being the testator's sole heirs in mobilibus); Robert Stewart and others, children or re-presentatives of children of the late John Stewart, fourth parties; John Charles Stewart and Frederick Campbell Stewart, the two sons of the late Robert Stewart, fifth parties; Mrs Louisa Gertrude Stewart or Swinburne and Mrs Frances Elizabeth Stewart or Wilson, the two daughters of Robert Stewart, with their respective husband's consent, sixth parties; ana Mrs Agnes Craig Moore or Stewart or Battcock, formerly widow of the testator, and her second husband William Frederick Battcock, as her curator and administrator—in-law. seventh parties, presented a Special Case for the opinion and judgment of the

Court, dealing with, inter alia, the interest in certain debenture stock held by the testator at his death, being a surplus of the income of his estate not required for carrying out the trust purposes, and falling, in consequence, into intestacy.

The Case stated, inter alia—“(12) The estate of the testator at the time of his death consisted, inter alia, of £6000 4 1 4 per cent. mortgage debenture stock of the Distillers Company, Limited. This stock is secured over certain heritable and leasehold property of the company in terms of or in manner set forth in the deed of agreement, dated 13th, 14th, and 15th days of April 1887, executed by and between the said company of the one part and certain trustees for the holders of the said stock of the other part, and was redeemable in the company's option after 1st January 1907, on six months' notice, at £110 per cent.”

Clause 2 of the deed of agreement provided, inter alia—“The said stock shall be, and shall have the incidents of, personal estate.”

The following question of law was, inter alia, stated:—“Is the widow entitled to jus relictæ … ( b) out of the income of the investment of £6000 … mentioned in statement 12?”

Argued for all the parties other than the seventh parties—The bond in question bore interest for a tract of time current at the testator's death, and was therefore, under the Act 1661, cap. 32, heritable quoad the widow's rights— Downie v. Downie's Trustees, July 14, 1866, 4 Macph. 1067, 2 S.L.R. 204, Dawson's Trustees v. Dawson, July 9, 1896, 23 R. 1006, 33 S.L.R. 749; Bennett's Executrix v. Bennett's Executors, 1907 S.C. 598, 44 S.L.R. 486; Stark v. Stark, 1910 S.C. 397, 47 S.L.R. 398; Heath v. Grant's Trustees, 1913 S.C. 78, 50 S.L.R. 38.

Argued for the seventh parties—The clause in the agreement expressly provided that the stock in question should have the incidents of personal estate, and this took it out of the ambit of the statute and the cases referred to. [ Cp. The Companies Clauses Act 1863 (26 and 27 Vict., cap. 118), section 23, not referred to.]

At advising—