Scottish Court of Session Decisions

This was an action of multiplepoinding raised by Mrs Helen Campbell or Downie, executrix-dative qua relict of the deceased James Downie, in which the fund in medio was the executry estate, and claims were lodged (1) by Mrs Downie as an individual, and (2) by the heirs in mobilibus of the said James Downie.

The facts of the case and the pleas of parties sufficiently appear from the opinion of the Lord Ordinary ( Pearson) which was as follows:—“The fund in medio in this multiplepoinding is the executry estate of the late James Downie. He died in 1899 without issue and intestate, survived by his widow who has been appointed his executrix-dative. His next-of-kin are his two brothers and two sisters and the family of a predeceasing sister.

The deceased left estate valued at £2141, 5s. 7d. Of this a sum of £1640 was invested in bonds and dispositions in security over various heritable subjects. The remainder consisted of shares in limited companies of the value of £485, and of small sums of interest accrued to the date of death.

The widow claims her legal rights of terce and jus relictæ. But further, and in the first instance, she claims to have made good to her out of the estate certain sums amounting to £637, being the proceeds of two deposit-receipts for £400 and £230, which belonged to her at or immediately after the marriage, and were endorsed by her to her husband. These claims, so far as made good out of the moveable estate, would reduce the fund out of which her jus relictæ is payable. It is therefore her interest to have these claims satisfied as far as possible out of the heritable estate.

As to the sums of £400 and £230, the next-of-kin, who have the opposing interest, state that they are satisfied that these sums, with interest, were Mrs Downie's property, and that ‘they were prepared to admit that there was donation of these sums,’ and that she is entitled to revoke the donation. The result, however, of satisfying this claim out of the moveable estate would be to exhaust that estate, and there would be no fund left out of which jus relictæ is payable.

Accordingly, the widow does not accept this admission of donation. She claims that the proceeds of the deposit-receipts should be made good to her out of the heritable and the moveable estates proportionally, so far as these consist of investments made since the marriage. Her averments, on which this conclusion depends, are these:—(1) That a few months after the marriage she endorsed each deposit-receipt ‘and handed it to her husband, who uplifted it, with the interest accrued thereon’; and (2) that these sums, amounting to £637, ‘were immixed by Mr Downie with his own funds, and invested by him as part of his own estate.’ It was explained at the discussion that in her view these sums in the hands of her husband were held in trust for her, and that the investments which resulted from his management of the mixed estate must be regarded as belonging to her pro tanto. This, however, involves matter of fact as to the footing on which the deposit-receipts were delivered by her to her husband, and as to that she makes no averment whatever. She does not aver that they were handed to him in trust, or for custody, or for investment, nor that he did wrong in immixing the proceeds with his own funds, or investing them as part of his own estate. All the averments which she makes on the subject (other than those which amount to pleas-in-law) are just as consistent with donation as with trust. Accordingly, it is not easy to see what object would be gained by a proof on this head, even if parties had moved for it. But as both parties urged that the case should be decided without it, I think the best I can do for Mrs Downie is to take her opponents' admission as it stands, and hold this to have been a revocable donation.

If so, it follows, in my opinion, that it gives rise (on its being revoked) to a claim against the estate for restoration of the sum of £637, and that this will be satisfied primo loco out of the moveable estate, which will thereby be exhausted.”

On 31st July 1901 the Lord Ordinary pronounced this interlocutor:—“Finds that, having regard to the averments of both parties in the competition, the sum of £637 (consisting of the sums of £400 and £230 therein mentioned, with interest thereon as condescended on) must be held to have been gifted by Mrs Downie to her husband, and to be subject to her right to revoke the same; and that upon her exercising her right of revocation the same falls to be paid to her out of the general estate of her deceased husband, and primo loco out of the moveable estate: Finds that the said sum of £637 being more than the net amount of the moveable estate of the deceased, no fund remains in that event to answer Mrs Downie's claim for jus relictæ: … Grants leave to reclaim.”

The Titles to Land Consolidation Act 1868, sec. 117, enacts—“From and after the commencement of this Act no heritable security granted or obtained either before or after that date shall, in whatever terms the same may be conceived, except in the cases hereinafter provided, be heritable as regards the succession of the creditor in such security, and the same, except as hereinafter provided, shall be moveable as regards the succession of such creditor, and shall belong after the death of such creditor to his executors or representatives in mobilibus, in the same manner and to the same extent and effect as such security would,

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under the law and practice now in force, have belonged to the heirs of such creditor: … And further, provided that all heritable securities shall continue, and shall be heritable quoad fiscum, and as regards all rights of courtesy and terce competent to the husband or wife of any such creditor, and that no heritable security, whether granted before or after marriage, shall to any extent pertain to the husband jure mariti, where the same is or shall be conceived in favour of the wife, or to the wife jure relict&oelig, where the same is or shall be conceived in favour of the husband, unless the husband or relict has or shall have right and interest therein otherwise.”

Mrs Downie reclaimed, and argued—The £637 was a debt payable out of the exectitry of the deceased, and by sec. 117 of the Act of 1868 heritable bonds were declared to be moveable quoad succession, i.e., they fell into executry. The claimant was therefore entitled to insist that a proportionate share of the debt should be paid out of the bonds, and she had a clear interest to do so; otherwise the moveables would be exhausted and her claim to jus relictæ defeated.

Argued for the claimants, the next-of-kin—The Lord Ordinary was right. The sum claimed by the widow was simply an ordinary debt, and as such payable primarily out of the moveable estate, which must be exhausted before the heritable estate could be trenched upon. Moreover, sec. 117 expressly provided that heritable securities should not be liable for jus relict&oelig.

At advising—