Scottish Court of Session Decisions

On 10th November 1884, Mrs Craig, widow of the late Archibald Craig of Birdsfield, Blantyre, who died in February 1881, raised an action against the trustees of her deceased husband for the amount of her husband's estate falling to her jure relictœ. She was met by pleas (1) of acquiescence and mora; (2) of her election to take benefit under her late husband's trust-disposition and settlement.

The Lord Ordinary ( Trayner) repelled these pleas, and appointed the case to be put to the roll for further procedure.

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The defenders reclaimed to the Second Division, who adhered, and remitted the case to the Lord Ordinary.

The question between the parties at this stage of the case, now reported, related to the construction of the trust-disposition and settlement of John Craig, father of the pursuer's husband, which was dated 28th February 1876. In it he directed—“ Fifth, I direct my trustees to pay to each of my sons John Craig, James Craig, Alexander Craig, and Thomas Craig, and the heirs of their bodies, the sum of five thousand pounds, and to my son Archibald Craig, and the heirs of his body, the sum of one thousand pounds.. .. . Seventh, With regard to the residue of my trust-estate, I direct my trustees to hold one-sixth share thereof for behoof of my son William,. .. . and to divide the remainder thereof among my other sons equally, share and share alike, including in the division the lawful children of any of them who may have predeceased as representing the parent or parents, per stirpes; and as regards the date of setting apart or payment of the pecuniary legacies above provided, whether in liferent or absolutely, my trustees shall, at the first term of Whitsunday or Martinmas that shall happen after the expiry of six months from the date of my death, pay or set aside for investment, as above provided, such a proportion of each of such pecuniary legacies as my personal estate after satisfying the specific legacies above provided may yield; …. declaring that the balance of the said legacies and the said residue shall be paid and set aside for investment as above provided, at the term of Martimas 1883, should I predecease that term, and should I survive that term the said several legacies and residue shall be paid and set apart as above provided at the first term of Whitsunday or Martinmas that shall happen after the expiry of six months from my death; and in the event of any of my sons predeceasing me without leaving lawful issue, but leaving a widow, my trustees shall pay to her during her survivance, or until she shall contract a second marriage, the annual interest of the legacy and share of residue to which her husband would have been entitled: Declaring that none of my said children or of their issue shall have any right to sell or dispose of or assign or alienate their shares of or interest in the said fund before it is divided, or even thereafter in the case of the shares which my trustees are herein above authorised to retain in their own hands so long as they are so retained.”

John Craig's trust-estate, so far as available, was only sufficient to pay a small proportion of the several legacies foresaid at Martinmas 1877, being the first term after the expiry of six months from the date of his death, and Archibald Craig received only £85,15s. 1d. The amount of the residue due and payable to Archibald Craig's children at Martinmas 1883 with interest was £1874, 15s. 3d.

The defenders pleaded—“(3) The balance of the legacy bequeathed to Archibald Craig and the heirs of his body, and the share of the late John Craig's trust-estate payable to Archibald Craig's children at Martinmas 1883, do not fall to be taken into account in ascertaining the amount of the pursuer's jus relictœ.”

The Lord Ordinary ( Trayner) repelled this plea.

“ Opinion.—With regard to the legacy of £1000 bequeathed to the late Archibald Craig by the fifth purpose of his father's settlement, I am of opinion that vesting took place a morte. Had there been sufficient free estate at the death of the testator, this legacy would have been due and exigible at once; and the provisions in the seventh purpose with regard to the payment of this and other legacies in the like position amounts only, in my opinion, to a postponement of the term of payment, and does not operate a postponement of vesting. The defenders indeed seem to have already acted upon this principle, as they paid a part of the legacy to the late Archibald Craig. The suggestion now made that the legacy only vested when and so far as paid, and did not vest quoad ultra, does not seem to me to be supported by any consideration derivable from the terms of the settlement, or from any principle of law.

I am also of opinion that the share of residue destined to Archibald Craig vested a morte. Against this view the defenders urge two considerations—(1) That the residue was not divisible before Martinmas 1883 (before which date Archibald Craig had died); and (2) that the truster had provided, with regard to residue, ‘that none of my children or of their issue shall have any right to sell or dispose of, or assign or alienate, their shares of or interest in the said fund before it is divided.’ The first of these considerations presents no difficulty. Payment was no doubt postponed, but I see no reason whatever for holding that vesting was also postponed, or anything to overcome the presumption in favour of immediate vesting. With regard to the second consideration, it appears to me that the provision against alienation, &c., fairly read, does not support the view maintained by the defenders. (1) The words used in the provision referred to are applicable in their most usual sense to an alienation inter vivos. They do not exclude the idea that the beneficiary was entitled to test upon the share of the residue falling to him. If he could dispose of his right by a mortis causa deed that infers that the right he was so disposing of had vested. (2) The provision in question is properly a restriction upon an existing right. It restrains the beneficiary from alienating or disposing of his share of the residue before the period of division; but that infers the power so to alienate but for the restriction thus placed upon the right. That again appears to me to infer a vested right.

The result is that both the legacy and the share of residue having vested in the late Archibald Craig, these sums fall to be taken into account in ascertaining the amount of his widow's jus relictœ.

The defender reclaimed, and argued—The fund did not fall to be taken into account in ascertaining the pursuer's jus relictœ, because there was no gift of either legacy or residue in John Craig's deed till the period of division, which was to be Martinmas 1883. The vesting was postponed till the day of payment. The presumption of vesting a morte testatoris was overcome— Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, vide Lord President, 145; Laing v. Barclay, July 20, 1865, 3 Macph. 1143; Stoddart's Trustees, &c., March 5, 1870, 8 Macph. 667; Sloane v. Finlayson, May 20, 1876, 3 R. 678. Further, there was

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a destination-over. (1) As regards the legacy it was left to Archibald Craig “and the heirs of his body,” which was not the more usual expression “to heirs and assignees.” (2) As regards the residue, there was the expression “including in the division the lawful children of any of them who may have predeceased as representing their parent or parents per stirpes.” The provision against alienation in the deed was sufficient also to overcome the presumption in favour of immediate vesting.

Counsel for the pursuer was not called upon.