Scottish Court of Session Decisions

On 7th September 1897 Mrs Hannah Barbara Storrier or Bruce, widow of William Keiller Bruce, wholesale confectioner, Dundee, raised an action against John Mitchell Keiller, wholesale confectioner, Dundee and London, herself, and William Walker Stephen, Solicitor, Dundee, trustees and executors of Mr Bruce, who died 19th March 1895, under his trust-disposition and settlement dated 11th March 1882, and codicil thereto dated 22nd September 1893. In this action she sought, inter alia, the reduction of a deed dated 14th June 1895, whereby she elected to take the provisions in her husband's settlement instead of her legal rights of jus relictæ and terce in his estate.

The pursuer pleaded, inter alia—“(2) The said deed of election ought to be reduced in respect that it was executed by the pursuer without independent legal advice, and without adequate information in regard to her legal rights. … (4) The pursuer not having validly and irrevocably elected to accept the provisions in her favour contained in the said trust-disposition and settlement, the defenders as trustees of the late William Keiller Bruce are bound to hold count and reckoning with her in order that the amount due to her as jus relictæ and terce may be ascertained.”

The defenders pleaded, inter alia—“(3) The pursuer having validly elected to take her conventional provisions, and having enjoyed these as condescended on, is not now entitled to recal said election, or to any accounting for terce and jus relictæ. (4) The deed of election libelled being the free act of the pursuer, with full knowledge of her rights and of the facts, and separatim not being to the pursuer's prejudice, the defenders should be assoilzied.”

The Lord Ordinary ( Kincairney) allowed a proof. The circumstances of the case, so far as they concern the legal points involved, are fully set forth in the opinions of the Lord Ordinary and the other judges.

On 25th February the Lord Ordinary pronounced the following interlocutor:— “Finds that the deed of election libelled was not executed by the pursuer under circumstances in which she was able to appreciate or estimate the conditions attaching to the testamentary provisions in her favour: Further sustains the pursuer's second plea-in-law, and reduces, decerns, and declares in terms of the declaratory and reductive conclusions of the summons, and appoints the cause to be enrolled for further procedure, reserving as to expenses meantime.”

Note.—“The pursuer seeks by this action to reduce a deed whereby she elected to take the provisions in her husband's settlement instead of her jus relictæ and terce. There are further conclusions the object of which is to ascertain the amount of her legal rights; but the parties agreed that the proof should not extend to these latter conclusions, but only to the question raised by the first conclusion, which is, whether the deed of election is irrevocable and irreducible, or whether in the circumstances the pursuer can be restored against it.

Mr Bruce and the pursuer were married in 1878. There was no marriage-contract. There are two children of the marriage, now aged eighteen and fifteen. Mr Bruce died on 19th March 1895. He left a trust-disposition and settlement, dated 11th March 1882, whereby he conveyed his estates to the pursuer, his widow, John Mitchell Keiller, wholesale confectioner, Dundee, and Mr Stephen, a solicitor in Dundee, as trustees. He appointed them to pay to his widow, the pursuer, the annual proceeds of his estates, and also his ‘household furniture, books, oil and watercolour pictures, engravings, photographs, silver plate, wines, liquors, and bed and table linen,’ declaring that these provisions should be in full to her of terce and jus relictæ.

The deed contained this provision— ‘Declaring also that the provision of said net annual proceeds … shall cease and determine and become null and void in the event of her marrying again after my death, saving to her nevertheless whatever she may have received from my said trustees during her viduity.’

The truster provided that in respect of these provisions his widow should maintain and educate the children.

The third purpose contains somewhat elaborate provisions for the children of the marriage, in full of ‘legitim, executry, and every other claim,’ but it is not necessary for the purposes of this case to advert further to these provisions. The trustees under the deed are curators of the children. The truster grants power to sell and to invest, and in particular, by a codicil executed on 22nd September 1893, he specially authorises his trustees to retain unrealised and to hold as investments any shares standing in his name in the books of James Keiller & Son, Limited. There are no legacies at all. Mr Bruce died quite unexpectedly, and apparently accidentally.

The trustees nominated accepted as trustees and curators. Mr Stephen acted as agent in the trust. I have not observed any written appointment by the trustees, but he was no doubt agent as he himself depones, and the trust-deed contains express power to the trustees to appoint one of their own number as agent.

The deed of election was framed by Mr Stephen, and was signed by the pursuer on 14th June 1895—rather less than three months after Mr Bruce's death. In making her election Mr Stephen was the pursuer's sole legal adviser. The pursuer was then thirty-nine years of age. Since her election,

Page: 782↓

and until a short time before the date on which this action was raised, 7th September 1897, the pursuer received and accepted the provisions in the trust-deed. She was married to Mr Stewart, who had been an intimate friend of her husband and herself, on 8th December 1897. That was after this action was raised, but I suppose there is no doubt (I have myself none) that the action was raised on account of her contemplated marriage, whereby she forfeits the liferent of her first husband's estate. In the rest of my opinion I shall for convenience speak of the pursuer as ‘Mrs Bruce.’

A proof of considerable length has been led, which, as I have noticed, is intended by the parties to bear only on the conclusion for reduction of the deed of election.

The question raised is to my mind of very great difficulty, but it absolutely wants almost all those features and particulars which have made other cases of this class intricate and complicated, which this case is not, although it is difficult and narrow.

In such cases one prominent question has often been whether the election was truly intended, but here it is by a formal deed as to the meaning of which no question has been raised. Further, in such actions questions have generally arisen as to the conduct of the trustees or their agent under whose guidance the widow has acted. Usually, or at least often, it has been said that he has acted unfairly, has misled her, and has exercised undue and unfair influence. In my opinion there is nothing whatever of that kind in this case. I have no doubt that Mr Stephen acted with a single and anxious desire for the benefit of the pursuer. I consider that his conduct as the pursuer's agent was unimpeachable, and I am happy to add that it has not been impeached. I am satisfied that he had no personal motives, and that he was not influenced, as may be insinuated, by any desire to stand well with his co-trustee Mr Keiller. It is true that Mr Stephen had more interests to look after than one. He was a trustee and agent for the trust; he was a curator for the children, and he was agent for the pursuer. But I doubt whether his duties in these several capacities could be properly said to be antagonistic, and I think he did not discern any antagonism. He did, indeed, take notice of his position, and he recommended the pursuer to employ another agent. He says (and I believe him) that he did so several times, but that she, having full confidence in him as a familiar friend of her husband and herself, always declined to do so. Whether Mr Stephen should not have taken a step further is another question. At the same time I doubt whether many agents would have done more or acted differently in the circumstances. Perhaps, looking back on the matter now, Mr Stephen may think that it would have been better had some things been done differently, as, for example, had he insisted on Mrs Bruce having independent advice. But that is a different matter, and I could not decide this case in favour of the pursuer if it were necessary for me, in order to reach that conclusion, to cast any blame on Mr Stephen.

Again, questions arise in such cases as to the intelligence of the widow, and her capacity to understand her husband's affairs and her own position. I do not think there is any such question in this case. So far as I was able to judge, Mrs Bruce is an intelligent lady. She says that she has no head for figures. That may be so; many intelligent ladies have not. But it does not appear that any difficulty arose with regard to the figures laid before her. There was certainly a considerable difficulty of a different sort with regard to her husband's estate, and to that I will advert afterwards.

On the other hand, doubts have arisen in such cases about the candour and straightforwardness of the widow. In my judgment there is no room for such doubts in this case. I think that Mrs Bruce was frank, candid, and truthful. I do not overlook that her evidence differed in some details from that of Mr Stephen, whom I consider also a highly reliable witness. But these discrepancies may be accounted for by the likely supposition that the pursuer may not have remembered, or perhaps fully appreciated, all that Mr Stephen said to her. They were on intimate terms and talked familiarly, and what he said might not have carried the same weight as if it had been spoken with the formality of an agent and stranger.

It is quite clear also in this case—and this I consider a very important point—that there was no urgency whatever about the pursuer's election. It practically affected nothing but the payments to herself, and it would have been quite easy to have made such payments on a conditional and hypothetical footing. Mr Stephen himself seems to admit that the election might have been allowed to lie over for a year without inconvenience.

Still further, matters are practically entire, and no inconvenience would be occasioned by permitting the pursuer to reconsider her election.

These are the general circumstances in which the question arises, whether, having reference to the more detailed facts, the pursuer having married, and having thus lost her liferent, can be relieved from her election.

The general question whether a widow's election, duly and deliberately made is irrevocable, or whether she can retract it debito tempore—that is, while matters are entire, has not, I think, been decided. The weight of authority is in favour of the view that her election is final, and that she has no locus pocnitentiæ. and I am not prepared to decide the reverse. Election by a widow or child between conventional and legal rights is a transaction which is, I think, of the nature of a contract constituted by offer and acceptance, although it is a contract and an offer and acceptance of exceedingly special and exceptional character. The

Page: 783↓

offer, for example, has the singular quality of being binding, and open for acceptance at any time, although there may be circumstances in which the widow and child may be held barred by mora from claiming the conventional provisions and confined to legal rights; I do not think, however, that there has been such a case. But generally I think that a widow might withhold her election so long as she did not thereby impede the execution of the trust. In Keith's Trustees v. Keith, 17th July 1857, 19 D. 1040, it was held that one of the parties, Mrs Villiers, was bound to make her election then, because, as I understand, upon her election the execution of an entail directed at that time depended. But I do not understand that it was laid down that in the general case a widow or child could be compelled to elect when there was no reason for urgency in the matter. It was plainly implied, no doubt, in the case of Keith's Trustees that the election would be irrevocable. In Inglis v. Inglis, 31st May 1887, 14 R. 740, in a question about legitim, Lord Trayner, Ordinary, expressed the opinion that if an election was well made and intimated it was out of the power of the party to withdraw it, and quoted in support of his opinion the case of Scarf v. Jardine, L.R., 7 App. Cas. 360, and an opinion by Lord Blackburn to that effect expressed in that case. The case did not relate to the kinds of election to be considered here. It was about the election of one of two debtors, but no doubt Lord Blackburn's dictum was general. It is necessary, however, to notice that in the Inner House this opinion was questioned by Lord Shand, and also, in perhaps more guarded terms, by Lord Adam.

In the special case of Dawson's Trustees v. Dawson, 9th July 1896, 23 R. 1006, one of the questions was whether a widow was barred by election from claiming her legal rights, and it was held that it was not necessary in the circumstances to decide the question. But Lord Kinnear in delivering the leading opinion said—‘If it could be shewn that she acted under a false impression as to the relative value of her legal rights and her testamentary provisions, it may be that she might still reconsider her position and revert to her legal rights, because nothing has followed upon her election which might not be easily undone so as to restore all parties to the same situation as if no benefit had been accepted under the will. … I know of no authority for holding that any express election which has been partly carried into effect can be recalled at pleasure, if it has been made not in ignorance or error but in the full knowledge of the existence and value of the abandoned right in comparison with that which has been accepted.’

On the whole, I think that a widow in the general case cannot be restored against her election merely and solely because her interest has changed, and she has changed her mind, and because matters are entire, if there be no other reason.

Does, then, the special clause by which the pursuer's liferent is forfeited on second marriage, which I suppose has really given rise to this case, make any difference? I am of opinion that it makes a great difference, and it makes it necessary to examine rather more closely the circumstances under which the election was made, with special reference to this point. Now, while Mr Bruce died on 19th March 1895, I find that on 19th April a state of the succession (to which I will advert more fully afterwards) was submitted to the pursuer ‘for the purpose of enabling her to consider whether she would abide by the settlement or elect to take her legal rights. It was arranged that she should carefully consider the matter for a few days and afterwards inform the agents of her decision’ [Minute, No. 26 of process]. She was, according to this minute, to have a few days for consideration. Why only a few days? Where was the hurry? There was nothing to do in the trust, there was nobody to be paid. Her election, if made then, would have been, and when made was, a merely barren election, binding and barring herself it may be, but having no other present effect.

At this point it becomes of some consequence to attend to the communications between Mr Stephen and Mr Keiller, who was then in London, and it is necessary here to mention that Mr Keiller was much the largest shareholder in the highly prosperous and wealthy firm of James Keiller & Son, Limited, and had the chief influence in the management of it, and Mrs Bruce seems to have regarded him with some apprehension, because she hoped through his good offices to have her son placed in the business.

On 30th May Mr Keiller writes Mr Stephen expressing his surprise that the pursuer had not decided. On 31st May Mr Stephen's firm write in reply that Mrs Bruce had apparently some difficulty in coming to a decision, and that they were ‘unwilling to have even the appearance of hurrying her unduly, and intended to let her alone for perhaps a fortnight longer, had we not received your letter. … We trust, however, that she will see her way to abide by the will. The matter is delicate, as no one but herself can estimate the personal considerations.’

In the beginning of June Mr Stephen called on Mr Keiller in London on the business of the trust, and he brought back with him a memorandum that Mr Keiller was ‘surprised and displeased that there should have been any hesitancy, but fully agrees that she must have her own time … must not be hurried.’ On 11th June Mr Stephen writes that the pursuer had now quite decided to abide by the provisions of the will, and that for her sake, and for the sake of the children, he was glad to hear it. On 13th June Mr Keiller writes in reply—‘The contents of your note of 11th inst. are so far satisfactory, and remove an uncomfortable dread.’ On 14th June, as already mentioned, the deed of election was signed. From these letters it appears clearly enough that both Mr Stephen and Mr Keiller were desirous that Mrs Bruce

Page: 784↓

should take her conventional provisions, and that Mr Keiller was impatient about it. I do not doubt that Mr Stephen's desire and anxiety were chiefly, if not wholly, because he had a strong opinion that it would be greatly in Mrs Bruce's interests to accept the testamentary provisions. I am not sure that I see Mr Keiller's reasons so clearly. I think he had a feeling that Mrs Bruce's hesitation was disrespectful to her husband's memory, and that his feelings on the subject were mingled with some displeasure. Now, Mr Stephen did his best to leave Mrs Bruce to exercise her own judgment, with, no doubt, such friendly advice as he had to offer. I doubt whether his endeavour to conceal his own and Mr Keiller's wishes was successful. He submitted the question to her a month after her husband's death, and apparently reverted to the subject more than once, and it certainly does appear that Mrs Bruce received the impression that she would displease Mr Keiller, from whom she hoped and feared so much, if she did not abide by her husband's deed. I think it very likely that Mr Stephen had unwittingly allowed her to get a glimpse at least of what truly were Mr Keiller's feelings. Now, that being so, I think there is good reason to hold that the election was not Mrs Bruce's unbiassed act.

A clause of forfeiture in the event of second marriage appears to me to be of great importance in considering the question of a widow's election, because for some time after a husband's death she is really unable to estimate the importance of the condition and of the prohibition which it implies. She has to balance her legal rights against her testamentary provisions, but these latter are weighted with this condition, the importance of which she is at that time wholly unable to realise. She is, therefore, not in a position duly to compare the two. She most probably over-estimates the testamentary provisions because she under-estimates the condition which accompanies them. No amount of consideration could remove this inability to see things in the light in which she would come to see them. Nothing but time and the abatement of feeling can do that. It was lawful for her to marry again. There was nothing wrong about it. Mr Keiller's feeling or sentiment, if he entertained it, may be natural enough, and even to his credit, but the law does not regard it.

I think that a widow should not be held to her election unless she makes it either of her own unaided volition, or in such circumstances and at such time as may relieve her mind from bias, prejudice, and emotion, so far as the necessities of business and the interests of others permit. If an estate requires to be immediately wound up and distributed, then perhaps she must elect and do the best she can, but if there is no reason for pressing on her election, I think that three months after death is too short a time, and that at that time she might probably feel such a distaste for the idea of a second marriage as would make the conditional forfeiture appear a very light condition. To ask her to elect is like asking her to make up her mind whether she shall remarry, which seems an unfair question if it can be postponed. On the whole I incline to think that it would have been better had Mr Stephen advised her to postpone her election.

In my opinion the pursuer is entitled to succeed on this ground alone, although I am not aware of any authority which goes quite so far.

But this is not the only ground, for in the first place she had no separate independent legal adviser—always an important point, however honourable and reliable the legal advice which she enjoyed may have been; and, secondly, I think that the statement of her husband's succession was hardly sufficient, having in view that the chief asset was of a very peculiar character, and that the questions as to the value of it are very complicated.

No. 7 of process is the state of the succession which was laid before Mrs Bruce, and there are only one or two points about it which it is necessary to notice. The whole nett estate was estimated as amounting to £18,830, 1s. 11d. The chief item is ‘James Keiller & Son, Limited, £15,612, 10s.’; that is to say, that sum is stated as the value of Mr Bruce's shares in that company. There are a number of other items in that part of the account which require little explanation, and no doubt received all they required. It is not said that there were any of them which Mrs Bruce did not understand. The result is brought out thus:—

‘One-third of the above sum.	£6110	0	8
£10a-year as terce, value say	148	0	0
Aliment,	300	0	0
Mournings,	80	0	0
Add—
Life policies (taken in name of Mrs Bruce),	2110	6	0
	£8748	6	8

‘£8748 at 3 1 2 per cent. would yield £306.’

That purports to show the capital she would get and the income she would secure if she took her legal rights. Of course £306 is a good deal more than the interest which could be derived from her jus relictæ, for the value of the policies is included. The interest from the jus relictæ would be only about £242. The information in this part of the state is defective in these two respects. It gives neither the number of the shares in Keiller & Son nor their value, and it says nothing about the board of the children. That is the one side set out with a view to election. The other side is this

‘(1.) Net annual income of estate, £2000, subject to maintenance and education of children.
Note.—Income ceases in the event of Mrs Bruce marrying again.
Page: 785↓ (2.) Household furniture at	£1461	9	6
(3.) Mournings,	80	0	0
	£1541	9	6
Mrs Bruce would also be entitled to the fore-mentioned two policies,	2110	6	0
	£3651	15	6

The above-estimated annual income of £2000 is expected to come almost entirely from James Keiller & Son, Limited, and is therefore subject to the fluctuation of trade.’

This part of the state purports to set forth Mrs Bruce's capital and her income under her husband's deed, but it affords no means of testing the statement of the income, and it does not explain that the children might in their time elect their legitim and thus possibly reduce her income by one-third. Upon the state of the suc-session as thus set before her, Mrs Bruce's choice seemed to be between a capital of £8748, 6s. 8d., yielding an income of £306 on the one hand, and a capital of £2110, with furniture, &c., plus an income of £2000.

Of course, on comparing these two sides of this state, one is at once struck by the startling fact that the income which could be got from the jus relictæ is only about one-seventh of the total income, when it might be expected to be one-third. When this apparent paradox is examined into, it is seen to arise from this, that the shares of Keiller & Son are valued at £12, 10s., but that they yielded about thirteen per cent. on that valuation.

When, again, it is asked how it comes about that a share which yields thirteen per cent. for £12,10s. should only be valued at that amount, and not at three or four times the amount, there are two answers given. The first of these is founded on two articles of association of Keiller & Son, Limited, the 33rd and the 113th. The 113th article provides that the directors shall, annually at the times mentioned, value the stock, and that all questions as to the value of shares and stock shall be regulated by that valuation, until a revaluation. The 33rd article provides that the board ‘may decline to recognise or register any transfer of ordinary shares, or ordinary stock made to any person who, in the opinion of the directors, should not be admitted as a member of the company, or who being a member of the company, should not in the opinion of the directors be allowed to acquire or possess more ordinary shares or stock, but they shall only be entitled to exercise this power of declinature on the condition that they name a person or persons willing to purchase the shares or stock at the price at which they were valued under article 113.’ Now, it is proved that at the date of Mr Bruce's death the valuation of the ordinary shares (Mr Bruce's were ordinary shares), as valued under article 113, stood at £12, 10s., whence it was argued that that was the only price which could be got for these shares, because the directors were entitled to intervene and purchase at that price any shares offered for sale.

The second answer was that £12, 10s. was the true value of the shares. The shares are not quoted, and have nothing which can be called a market price, but it was said that £12, 10s. would be their value if they were offered in the market. Now, on this point there was a great deal of evidence, and several accountants of the highest standing, skill, and experience, were examined on either side. The witnesses for the pursuer deponed that the true value of the shares was very much greater than £12, 10s. They founded on the long endurance and stability of the firm, and were of opinion that the shares of a commercial company which stood so high in public favour would readily sell on what they called a five per cent. basis; and further, on the fact that, besides dividing their large dividends, they had been able to devote a great part of their revenue to payment of debt. The witnesses for the defenders, on the other hand, held that it was necessary to take into consideration the speculative nature of the commodities in which Keiller & Son dealt, the debt, the large amount of the goodwill stated as an asset, the want of any proper reserve, and the relation of the preference to the ordinary shares.

Now, about these points I do not think it necessary to say more than this, that at least the second of them involves questions of extreme difficulty. The skilled witnesses differed widely, and it is out of the question to suppose that Mrs Bruce could understand it, or indeed the point which depends on the 33rd and 113th articles of association either (about which I desire to reserve my opinion). She had necessarily to form her idea of the value of these shares from the advice she received. Now, it is to be remembered that the proof led is not a proof of the value of the estate; that was excluded from the proof. It would not be competent for me to decide it now. The proof does not show that Mr Stephen's estimate of the value of the shares was wrong. Far from that. That was not its aim. That was not remitted to probation. But I think it shows that the matter was debateable, and that the difference between two highly respectable opinions involved a large amount. It was maintained by the defenders that it appeared from the proof that the state of succession on which Mrs Bruce proceeded was perfectly correct, and that she made no mistake at all. But, as I have said, I do not think I can consider that, but only whether the information she possessed was so full, intelligible, and exact that she is foreclosed from drawing back from her election although nothing has followed on it. The question is not easy, but I am disposed to answer that she is not foreclosed. To warrant recal of an election it is not always necessary to prove mistake as to the value of the estate. There was no such mistake proved in Inglis v. Inglis.

Further, I have noticed that there were

Page: 786↓

some things which it was important for Mrs Bruce to have in view which are not written down in the state of succession; there is, on the one hand, the sum which she would get as board for her children, and, on the other hand, the possible diminution of her testamentary liferent by the demand of the children for their legitim.

I do not doubt that these matters were explained to Mrs Bruce verbally by Mr Stephen. But the fact remains that her attention must have been drawn mainly and emphatically to what was written and was laid before her as exhibiting what it was important for her to consider, and it would appear from her evidence that she did not fully appreciate what was said on these other points when she had not the written state to guide her. On the whole, I do not think it proved that Mrs Bruce, when she made her election, had sufficient knowledge of the extent of her legal rights to enable her to make an intelligent and deliberate choice. Perhaps, considering the very complicated character of the assets, it may be doubtful whether her election would conclusively bind her, unless she were advised by a lawyer who had, as representing her, a definite antagonistic interest to the trust-estate and to the directors of Keiller & Son.

Several authorities were quoted on both sides, but I do not think that any of them, other than those which have been mentioned, afford much assistance, except Donaldson v. Tainsh's Trustees, June 11, 1886, 13 R. 967, to which, and especially to the opinion of Lord Justice-Clerk Moncreiff, I desire to refer. In that case the widow seems to have had much more to complain of than the pursuer here. The case differs in many respects from this case, but it has many features in common, and it appears to me that the opinion of the Lord Justice-Clerk is in the main applicable to this case. In that case the widow was restored against her deed without a reduction of it, but here the pursuer has brought a reduction of the deed of election, and it appears to me, for the reasons which I have endeavoured to explain, that she is entitled to succeed, on the ground that it was executed by her under circumstances in which she was unable duly to appreciate or estimate the conditions attaching to her testamentary provisions, and because it was executed without independent legal advice, and without adequate information in regard to her legal rights.”

The defenders reclaimed, and argued—(1) There was no evidence that the pursuer had been unduly hurried into making her election. She made her election three months after her husband's death, and even if the election had been made at a much earlier date after the death, there was no presumption that the widow was in luctu, viz.—so overwhelmed with grief as to be unable to decide —Macgrigor v. Black, March 2, 1839, F.C. The pursuer did not complain at the time she made her selection of undue hurry. She had been told frequently that she could take as long as she pleased to make up her mind. Of course she was aware that the trustees wished matters settled as soon as possible. It was the duty of trustees to see that an election was made between legal and conventional provisions as soon as possible. It was a proper piece of trust administration to settle such a matter at an early date. If election to take legal rights was made, the estate had to be valued at the date of death, so it was the only prudent course to have an election made, and rights definitely ascertained as soon after the death as possible. A widow's right to terce and jus relictæ was a claim against the estate of the deceased, and it was the duty of the trustees to get the claims against the estate settled as early as convenient —Boss v. Masson, February 3, 1843, 5 D., opinion of Lord J.C. Hope 488; M'Murray v. M'Murray's Trs., July 17, 1852, 14 D. 1048; Keith's Trs. v. Keith, July 17, 1857, 19 D. 1040; Earl of Dalhousie v. Crokat, March 26, 1868, 6 Macph. 659. (2) It was said that the pursuer had no independent legal advice. But that was not the fault of the defenders. Mr Stephen had asked her again and again to take separate advice, but she always refused to do so. (3) It was contended that the estate submitted by Mr Stephen to the pursuer did not contain full information. But this state had been supplemented by conversations between the pursuer and Mr Stephen, in which the latter had fully explained that the estate would be diminished if the children claimed legitim when they came of age, and that the pursuer had right to an allowance for maintenance of the children in the event of her electing to take her legal rights. Then as to the valuation of the shares— The valuation was a fair and honest representation of the value of the shares at the date of the husband's death. The valuation must be taken as at that date— Gilchrist v. Gilchrist's Trustees, July 19, 1889, 16 R. 1118. It was outwith the question to argue that they had risen since, or to point to the fact that they were now more valuable. If the widow had chosen her legal rights the trustees could not have given her the shares. A widow who elected to take her legal rights was not entitled to a share of the estate. Her right was that of a debtor, and she was entitled to be paid in cash a proportion of the value of the estate —Fisher v. Dixon, June 16, 1840, 2 D., opinion of Lord Fullarton, 1140; Earl of Dalhousie, supra, 6 Macph., opinion of Lord Curriehill 666; Inglis v. Inglis, January 28, 1869, 7 Macph., opinion of L.-P. Inglis, 437. In 1895 £12,10s. was a fair and reasonable price for the shares of an industrial company like James Keiller & Son, Limited, which had no reserve and was owing large sums to J. M. Keiller. £12, 10s. had been accepted as a fair price by the Inland Revenue, and it was an ordinary step in trust-administration to take the valuation in the inventory as the value of the property in questions of jus relictæ and legitim— Breadalbane's Trustees v. Duchess of Buckingham, May 26, 1842, 4 D., opinion of Lord J.-C. Hope, 1264. Besides, the auditors of the company had valued the stock at this price under

Page: 787↓

article 113 of the articles of association, and under article 33 the directors could refuse to register any transfer of the shares on their finding a person willing to purchase them at the above price. This article was quite legal, and in the absence of any evidence to the contrary the Court would assume that the directors were acting reasonably and bona fide in refusing to register a transferee— in re Gresham Life Assurance Society 1872, L.R., 8 Ch. Ap. 446; in re Coalport China Co. [1895], 2 Ch. 404. In short the directors had the absolute discretion of admitting a transferee or paying him out at the above price. In all these circumstances £12,10s. was a fair valuation for these shares. Even if they were worth more they would only have been discovered to be so after a protracted litigation, and a widow was not entitled to go back on her election merely because she had not been told that if the trustees engaged and were successful in a lawsuit the results of which were very doubtful, the value of one of the assets of the estate might possibly be raised. All the evidence in the case went to show that the election had been deliberately made without undue pressure, with full information, and after plenty of time for consideration.

Argued for pursuer—The judgment of the Lord Ordinary was right. (1) The pursuer had been unduly pressed to make her choice, and too little time had been given to her. It was plain that both Mr Keiller and Mr Stephen disapproved of her hesitation and showed themselves very anxious that the pursuer should make up her mind at once to take the provision in the trust-deed. There was no need for this undue haste. It would not have prejudiced anyone if the estate had been kept intact and the election not made for years, as Mr Bruce died in 1895, and the elder child would not attain majority till 1901. Taking her conventional provisions in the present case resulted in her being barred from marrying again without losing everything, and within three months was too soon after her husband's death for a widow to give due consideration to the question whether she would or would not marry again. It was the duty of trustees to see that a widow, before she made up her mind to an election injurious to her interests, was acting not from emotional feelings as to what she might suppose to have been her husband's wishes— Donaldson v. Tainsh's Trusteess, June 11, 1886, 13 R., opinion of Lord J.-C. Moncreiff, 972. That led to the next point—(2) The pursuer had no separate advice. She was plainly dominated by what she considered to be the wishes of Mr Keiller and Mr Stephen. Mr Stephen should not have been satisfied with her refusal to employ a separate agent, but should have insisted on her doing so. It was a typical case for independent legal advice. (3) The state submitted to the pursuer did not contain a sufficient explanation of the position of matters. In the document there was no statement that if she chose her legal rights she would also get an allowance for the maintenance of the children, or that in the event of her accepting her conventional provisions these might be diminished if the children demanded their legitim on attaining majority. It was vain to aver that these matters had been mentioned in conversation by Mr Stephen. Verbal statements were worth nothing, the widow could not be held to have taken them into consideration. The shares were clearly of a much higher value than £12, 10s. It was contended that article 113 restricted their value, but directors could not object to a transfer without good reason, and this article should not therefore affect the marketable value of the shares—Lindley on Companies, 5th ed., 465. £10 shares yielding 17 per cent. were very much undervalued at £12, 10s.

At advising—