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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Pringle's Executors [1870] ScotLR 7_335 (2 March 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0335.html Cite as: [1870] ScotLR 7_335, [1870] SLR 7_335 |
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Page: 335↓
A lady, after surviving her husband for ten years, died intestate without having made her election between her conventional provisions under her husband's testamentary deeds and her right to terce. In the meantime the trustees under these deeds had consigned judicially the amount of these provisions in bank, and intimated to the lady. They had also called her as defender in an action of multiplepoinding brought for the purpose of dividing the estate of her husband, in which she made no appearance. Held that she had acquiesced in the provisions made for her by her husband, and that her representatives were not entitled to claim the arrears of terce.
Question—Whether, in order to transmit any right to arrears of terce to her representatives, it is necessary for a widow to have been served to the terce?
This was a special case submitted to the Court
Page: 336↓
for their opinion and judgment, by the executrices of the late Mrs Pringle of Torwoodlee on the one part, and Mr James T. Pringle of Torwoodlee on the other. The following were the facts agreed on by the parties:—Vice-Admiral James Pringle was at the time of his death, which took place on October 31, 1859, proprietor infeft in fee-simple of the lands and estate of Torwoodlee, in the counties of Selkirk and Roxburgh. The gross rental of Torwoodlee at the date of Admiral Pringle's death, including the mansion-house, policy grounds, and shootings, was upwards of £2500. He also left moveable estate of the value-after deducting debts, &c.—of upwards of £7000. The Admiral was survived by his wife Mrs May Fraser or Pringle, and seven children. There was no contract of marriage, either antenuptial or postnuptial, between Admiral Pringle and his wife. The Admiral left the following writings of a testamentary nature:—(1) A heritable bond of annuity in favour of his wife, dated 19th February 1848, with a codicil or addition thereto, dated 13th October 1849, by which he provided to her an annuity of £520 sterling, including therein such pension or annuity as she should receive from the Admiralty in respect of her being the widow of an officer of the Royal Navy; and (2) a trust-disposition and settlement, dated 13th October 1849, with four codicils thereto, dated respectively 5th February 1851, 22d April 1854, 29th August 1855, and 23d June 1857. By the said trust-disposition and settlement, and in addition to the annuity above mentioned, Admiral Pringle directed a sum of £1000 to be paid to Mrs Pringle to enable her to purchase furniture and mournings, and as an interim alimentary allowance. Mrs Pringle did not during her survivance of the Admiral accept the provisions conceived in her favour by the writings above mentioned, or any payment to account of the said provisions apart from her pension or annuity from the Admiralty, which amounted to £120 per annum; nor did she claim her legal rights; nor did she declare her election whether to accept the conventional provisions in her favour or to betake herself to her legal claims. She never obtained herself served to the terce of the heritable subjects in which the Admiral died infeft. On April 23, 1861, the trustees consigned in the British Linen Company's Bank in Melrose the sum of £1000, provided to Mrs Pringle by Admiral Pringle's trust-disposition and settlement, to enable her to purchase furniture, and for mournings and interim aliment, with interest due thereon, less tax, amounting to £71, 2s. 5d.; and they also consigned the amount of the annuities payable to her under the bond of annuity and codicil, or addition thereto, at and prior to the term of Martinmas 1861, for the period to Whitsunday 1862, with interest due thereon, under deduction of income-tax, amounting together to £1048, 14s. 11d., after deducting the pension of £120 per annum, to which she was entitled from the Admiralty.
Mrs Pringle never uplifted these sums; and on March 1864 the trustees raised an action of multiplepoinding in which they called Mrs Pringle, the heir-at-law, and others interested in the Admiral's succession, for the purpose of having the estate distributed at the sight of the Court, and for procuring exoneration. Mrs Pringle did not enter appearance or lodge a claim in the process. The only party who did appear as a claimant was James Thomas Pringle, who lodged a condescendence and claim, in which he claimed that the trustees should execute a deed of entail in his favour of the estate of Torwoodlee, and also that the trustees should pay to him the free rents of the estate since the date of Admiral Pringle's death.
The Lord Ordinary ( Ardmillan), on 8th July 1862, pronounced an interlocutor finding (1) that the trustees were bound to execute (as they declared their willingness to do) a deed of entail in favour of the said James Thomas Pringle, and the heirs-substitute of entail mentioned in Admiral Pringle's settlement of the estate of Torwoodlee, but under burden of the annuity provided by Admiral Pringle to his widow; or alternatively of her right of terce in the event of her electing to take the same, and also under burden of the heritable debts and incumbrances affecting the lands; and (2) that the said James Thomas Pringle was entitled to the whole free rents of the estate since the date of Admiral Pringle's death, under deduction of the annuity payable to Mrs Pringle, or of her terce, if she should claim the same, and of other preferable charges.
The trustees executed the entail, paid over the amount of the free rents to the heir of entail, and judicially consigned the whole sums due to Mrs Pringle up to that date, Whitsunday 1862, amounting to £2655, 5s. 5d., in the British Linen Company's Bank, on a receipt taken payable to the party or parties who might be preferred thereto, and subject to the orders of the Court, or the Lord Ordinary in the cause. After this action was brought, the said sum still remained consigned, and the receipt therefor, dated 29th February 1864, remained in the custody of the Accountant of Court.
All these proceedings were from time to time specially intimated to Mrs Pringle, who died intestate on 31st March 1869, without having made her election between her conventional provisions and the terce.
In these circumstances, the question for the opinion and judgment of the Court was, Whether Mrs Elizabeth Pringle or Borthwick, and Mrs Jane Pringle or Lawson, as executrices of Mrs Pringle, their mother, are or are not entitled to claim the terce of the heritable subjects in which Admiral Pringle died infeft, so far as consisting of subjects which by law are subject to terce, for the period between Admiral Pringle's death and the death of Mrs Pringle?
The Solicitor-General and Balfour, for the executrices, cited the following authorities:—Ersk. Prin. ii. 9, 50; Bell on Conveyancing, vol. ii., p. 796; Bell's Prin. § 1602; Macaulay, M. 3112; Veitch, M. 1687.
The Dean of Faculty and Mr Asher, in answer, pleaded that terce was an alimentary provision, the right to which did not transmit to representatives, and certainly not without service by the widow; and cited the following authorities: Stair ii. 6, 13; Forman, M. 15.843; Fea v. Traill, M. 16,115; M'Leish, Feb. 4, 1826, S. iv. 485.’
At advising—
Lord President—This a case which is very peculiar in its circumstances, and which hardly admits of the application of any general principle and rule of law. Admiral Pringle of Torwoodlee, died on 31st October 1859, leaving a large family and a widow. There had been no contract of marriage either antenuptial or postnuptial entered into by the spouses, but the Admiral left two deeds of a testamentary character—(1) a heritable bond of annuity in favour of his wife, dated in 1848, of
Page: 337↓
She drew her annuity from the Admiralty of £120, and upon that she lived; for she neither accepted the conventional provision of £1000 and the annuity of £400, nor did she ask for her terce or jus relictœ. She lived for ten years upon her pension, and then died intestate, without having made any utterance in the matter.
The question in these circumstances is, Whether her representatives or next of kin are entitled to claim the bygone terce for the whole period of her viduity? In determining this question there are some circumstances which it is important to keep in view; and first, one must never forget that terce is a provision of the law in favour of a widow, for the purpose of alimenting her during her viduity. Now, Mrs Pringle was called upon more than once to make her election between her conventional provisions and the terce in the most emphatic way, both by the heir-at-law and by the trustees of her late husband. Thus, on 23d April 1861, eighteen months after her husband's death, the trustees consigned in bank the sum of £1000 provided by the settlement, and also consigned the amount of the annuity up to Martimas 1861 which, as it was payable in advance, included the period up to Whitsunday 1862, and which with interest amounted to more than £1000. Still the lady did not uplift these sums, and the trustees, in March 1862, brought an action of multiplepoinding, the object of which was to have the estate disposed of at the sight of the Court, and to obtain a discharge for the trustees: one of the things which the trustees had been instructed by the deed to do was to make an entail of the estate of Torwoodlee, and there had been the greatest difficulty and embarrassment in the conduct of the trust in consequence of the widow refusing to make her election. One object of the multiplepoinding, therefore, was to make the lady declare her election between the conventional provisions and the terce.
She was called in the action along with the heir-at-law and all the others interested in the succession of the Admiral.
After the process was brought into Court the Lord Ordinary ( Ardmillan), on May 20,1862, pronounced an interlocutor holding the trustees liable only in once and single payment, and holding the summons and condescendence as a condescendence of the fund in medio, and appointing all parties claiming an interest in the fund to give in condescendences and claims within ten days; and this order for claims was renewed on June 5, 1862. Special intimation of both of these interlocutors and orders for claims, with copies thereof, was sent by the agents for the trustees to Mrs Pringle on 6th June 1862, but she returned no answer thereto.
She was thus fully certiorated of what was done, that the distribution of the estate was going on, and that what was due to her had been consigned, yet she lodged no claim, and made no appearence in the action.
The trustees continued to consign, half yearly as it became due, the annuity payable to her; an entail was then executed, and the whole sum consigned, amounting with interest to £2655, was under an interlocutor of the Lord Ordinary, after intimation to the lady, judicially consigned in the British Linen Company's Bank, on a receipt taken payable to the party or parties who might be preferred thereto, and subject to the orders of the Court. It is only necessary to add, that after consignation the trustees got their discharge, the accounts of their intromissions having been sent to the auditor, who reported that there was in the hands of the trustees a balance of free rents of the estate of Torwoodlee from the date of the Admiral's death to the date of the execution of the entail, amounting to £460, 1s. 3d., and this balance, on 14th March 1865, the Lord Ordinary decided that the trustees should pay over to the heir of entail.
During all this time Mrs Pringle maintained her attitude of silence, but it appears to me that, in the face of all these proceedings, we must attach a weight and significance to this silence. Silence often means acquiescence. It appears to me that when this lady, with full intimation, allowed her provisions to be judicially consigned without any objection, and further submitted without remonstrance to a payment by the heir of entail of the balance of free rents, she must be held to have abandoned her claim to terce. But she lived on for four years after this, from 1865 to 1869 upon her pension without making any remonstrance, or indeed any utterance of any kind, and it appears to me that, whether she would have been barred from making a claim for terce by her long acquiescence, that certainly her right to make a claim for terce has not been transmitted to her representatives.
Her proceedings show that she did not intend to claim her terce; she did not require it for her aliment. If she wished a larger income, she knew that those consigned sums were lying in bank for her benefit, and she failed during all this time to intimate her repudiation of the conventional provisions.
All these circumstances are conclusive to my mind against the claim of her representatives in this case. If it were not for these special circumstances, questions of great general importance and difficulty would arise in this case, regarding the steps which it is necessary for a widow to take during her viduity, in order that the terce may vest in her person and be capable of transmission to her representatives, and it is a great relief to me to find in the circumstances of this special case ample grounds for judgment, without entering into any consideration of these very difficult questions.
Lords Deas and Ardmillan concurred.
Lord Kinloch—This case was presented to us at the bar as involving some legal questions of great importance, and particularly that very general one, whether, a widow who had not served to her terce during her lifetime transmitted to her representatives a right to the third of the rents during her survivance against her husband's heir. I carefully considered the questions discussed before us; and had matured an opinion upon them: but I have come to think, with your Lordship, that
Page: 338↓
Unquestionably the late Mrs Pringle was originally entitled to elect to take her legal right of terce in preference to the provisions in her husband's settlement. But she was bound, in fairness to those interested, to intimate her election without delay. And if she intended to claim her legal right of terce, she ought openly and distinctly to do so. She could not reasonably keep hanging over the head of the heir a claim for terce, with, in all probability, five per cent, interest on last term's rents, for a wholly indefinite period. In the present case she was the more imperatively called on to come forward with a claim by the fact of the annuity due under the settlement being within her knowledge assigned from term to term for her use. Though she did not formally accept the tender, she never in any way rejected it. She never made any claim to terce, either by formal process or informal demand, during all the ten years that she survived her husband. She allowed the money assigned in bank to meet her annuity under the settlement to lie unrepudiated till her death. In this special condition of things, I consider it to be a sound conclusion, that no claim for terce was intended to be made by her; that the only claim which can be now held to have been kept up is that for the annuity under the settlement; and that this claim, and this only, was transmitted by her to her representatives.
I do not, in so holding, indicate any opinion either that silence is necessarily to transmit to a widow's representatives a claim against her husband's heir for one-third of the rents during her survivance; or that, where matters are entire, these representatives have not the same power of electing between the terce and other provisions primarily competent to the widow herself. All that I decide is, that in the special circumstances of the present case no claim of terce was transmitted to her representatives by Mrs Pringle.
The question was accordingly answered in the negative.
Agents for Pursuers— Messrs C. & A. S. Douglas, W.S.
Agents for Defenders— Messrs Bomanes & Paterson, W.S.
