Scottish Court of Session Decisions

This Special Case was adjusted between Mrs Janet Findlay or M'Fadyen, widow of Archibald M'Fadyen, manufacturer in Paisley and Glasgow, of the first part, and certain parties (of whom she was herself one), her husband's testamentary trustees, of the second part, under the following circumstances:—Archibald M'Fadyen, manufacturer in Paisley and Glasgow, died on 19th December 1878, leaving a trust-disposition and settlement by which he conveyed to the second parties, as trustees for the purposes therein mentioned, his whole means and estate. Besides his widow, the first party, M'Fadyen was survived by eight children of the marriage, a ninth having been born a few days after his death. At the date of this Special Case five of these children were in minority and three in pupillarity. The first purpose of the settlement was for payment of the testator's debts, &c. By the second purpose the testator directed his trustees to allow his widow the liferent of his house No. 31 Calside Street, Paisley, and to deliver to her for her absolute use his whole household furniture and plenishing. The annual value of the house, as stated in the valuation roll, was £47, 10s., and the value of the furniture, as stated in the inventory of the deceased's personal estate, was £154, 8s. By the third purpose of the settlement the testator directed the trustees to allow his widow, in her option, in case she survived him, and so long as she remained unmarried, to continue to carry on the business, or any part thereof, in which he might be engaged at the date of his death, for behoof of herself and his children, in alimenting and supporting her and them. No power to carry on the business was conferred on the trustees. The testator further directed that an inventory and valuation of the stock-in-trade, or part thereof selected by her, should be made up, and that she should grant an obligation to the trustees that they could resume possession. He further empowered his trustees to lend to his widow part of the funds of the trust-estate, not exceeding £1000, to enable her to carry on the business, and that on such conditions as the trustees might consider proper. This provision was made under burden of her maintaining, clothing, and educating such of the testator's children as might be under eighteen years of age until they respectively attained that age; but in the event of the widow's income from the business proving inadequate for the maintenance of herself and the children the trustees were directed to supplement it from the testator's other estate. By the fifth purpose of the deed the testator directed his trustees, on the last of the following events occurring, viz., the death of the longer liver of himself and his wife, or the arrival of his youngest surviving child at twenty-one years of age, to realise his whole heritable and moveable estates, including the value of the stock and business entrusted to his widow, and such sum as might have been advanced to her to carry on the same, by offering the same at a valuation previously made to each of his children according to their seniority; and failing acceptance by all of his children the trustees were directed to dispose

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of said stock-in-trade and business by public roup or private sale, as the trustees should think expedient. The trustees were directed to divide the free proceeds equally among the testator's children, born or to be born, share and share alike, the issue of predeceasing children taking their parent's share. The trustees were further authorised to sell any part of the trust property to any one or more of their own number, or the beneficiaries of the trust, at such price or prices as might be agreed on. The settlement further declared that the provisions therein made in favour of the testator's wife and children should be accepted by them in full satisfaction of all terce, jus relictœ, legitim, portion-natural, bairn's part, executry, or others which they or either of them could demand in and through his decease; and that in case of their repudiating the settlement and claiming their legal provisions, or by any means preventing the settlement from taking effect, in whole or in part, then they should forfeit all right to any part of the testator's estate and effects which he might freely dispose of by law. In addition to the house at Calside Street, Paisley, and the household furniture therein, the value of the testator's estate at the date of his death was given up at £2795, 7s. 3d.

After the testator's death his trustees allowed the widow to continue in the occupancy of the house in Calside Street, Paisley, and to take possession of the household furniture therein; and at a meeting of trustees held on 29th May 1879 the widow formally intimated that she desired to continue the business so long as she remained unmarried for the purpose of alimenting herself and her children. The trustees being advised that it was within their power to do so, and considering it expedient in the interests of the children, agreed to allow her to continue the business. The arrangements regarding the business were afterwards adjusted in the form of an obligation granted by the widow in favour of the trustees, dated 8th January 1880. By this obligation the widow became bound to deliver back to the trustees the stock and business so entrusted to her, and to allow the trustees to resume possession in the event of her resolving to marry again. The obligation further set forth that the trustees had, under the power to that effect conferred upon them by the testator, lent to the widow upon her personal bond, without security and without interest, the sum of £1000 out of the trust-funds, to enable her to carry on the business, and agreed to dispense with interest thereon in lieu of allowing her an equivalent sum as a supplementary annuity under said trust-disposition and settlement, in the event of her income being inadequate for the above purposes, on condition she gave her personal bond (which she had granted of the same date with the obligation), and had also delivered to her said household furniture and plenishing, and allowed her the liferent use and enjoyment of said heritable property at Calside Street, Paisley, and that it was just and proper she should accept of said provisions in full of all claims she might have against said estate so long as she continued to carry on said business and retained said sum for the aforesaid purposes. She therefore accepted these provisions in full of all claims she might have against her husband's estate, so long as she continued to carry on the business and retained the sum of £1000 for the purposes thereof. The terms in which the obligation declared her acceptance of these provisions were that she accepted them “in full satisfaction of terce, jus relictœ, or other right or claim whatsoever I can demand in and through his decease, or from the said estate, so long as I continue to carry on said business and the said loan of £1000 remains unpaid.”

This Case was presented to the Court in consequence of the widow announcing that she was desirous of contracting a second marriage, and of doubts which consequently arose as to whether it was still competent for her to claim her legal rights.

The only question submitted for the opinion and judgment of the Court to which reference need here be made was—“(1) Is the first party entitled, upon giving up to the trustees the said business and stock-in-trade, or value thereof, and repaying the said advance of £1000, to claim terce and jus relictœ out of his estate?”

Argued for the first party—A widow who accepts conventional provisions, even for a series of years, is not precluded from thereafter reverting to her legal rights, if that were done in ignorance of her legal position. Here the case is still stronger, for it was done under a condition. The widow had accepted the provisions of the settlement so long as she retained the loan of £1000 and continued the business.

Argued for the second parties—Having enjoyed her conventional provisions so long, the widow must be held to have made her election, by which she must now abide.

At advising—