Scottish Court of Session Decisions

Major William Burnet Craigie was married to Mary Ada Fleming on 11th October 1882. No antenuptial contract was entered into between the spouses, but by a letter dated 4th October 1882, addressed to Miss Fleming's father, Major Craigie agreed in anticipation of his marriage to continue to subscribe to the Bengal Military Fund during her lifetime in order to entitle her to a pension on widowhood. In implement of this agreement Major Craigie subscribed to the fund with the result that at his death in 1903 Mrs Craigie became entitled to a pension of £187, 4s. 8d. out of that fund during her widowhood.

Major Craigie died on 31st March 1903, survived by his wife and two daughters, aged 18 and 12 years. He left a trust disposition and settlement, dated 23rd November 1882, with four codicils thereto, by which he conveyed his whole means and estate to trustees. By the settlement the trustees were (1) to set aside a sum sufficient to yield an annuity of £113 or such other sum less or more as should be necessary along with the pension from the Bengal Military Fund to make up an annual sum of £300 to be enjoyed by Mrs Craigie during widowhood; (2) to pay the residue of the estate, including the sum set apart for payment of the annuity to Mrs Craigie when the sums should be set free, to and among the children of the marriage, the shares of daughters vesting only on their attaining majority or being married; and (3) in the event of the children predeceasing the period of vesting to pay a legacy of £1000 to Miss Margaret Stewart Burnet, the testator's half sister, and the residue to Mrs Isabella Mary Burnet Craigie or Forrest, the testator's sister.

Major Craigie left moveable property amounting to about £28,500.

Mrs Craigie considering the provision made for her in her husband's settlement inadequate, claimed her legal rights, and the question arose whether in doing so she was bound to bring her pension from the Bengal Military Fund or its value as at Major Craigie's death into accounting, or whether she was entitled to her legal rights in the estate in addition to the pension.

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By the regulations attaching to the payment of the said pension from the Bengal Military Fund to Mrs Craigie, the application therefor to the India Office required the signature of Mrs Craigie only, and not of Major Craigie's trustees; and by article 42 all income derived from the fund is declared to be inalienable, and the fact of attempting the alienation of such income in any manner or under any pretence is to be deemed in itself a forfeiture of all future benefits from the fund.

For the settlement of the point a special case was presented to the Court by (1) Major Craigie's trustees, (2) Mrs Craigie, (3) the testator's two daughters and their curators, and (4) Mrs Forrest and Miss Burnet.

The question of law was—“Is the second party, on taking her legal rights in her husband's estate in place of her provisions under his settlement, bound to account to the estate for her pension from the Bengal Military Fund, or to allow the value thereof as at Major Craigie's death to be included in the estate?”

Argued for the second party—The pension from the Bengal Military Fund was equivalent to a gift from the husband to his wife during his life. Even if it was held to be a conventional provision accepted by the wife, it did not exclude her right to claim jus relictœ, as it was not clogged with the condition that it was not to operate as exclusive of jus relictœ—Fraser's Husband and Wife, 2nd ed., 1067; M'Laren's Wills and Succession, 3rd ed., 145; Keith's Trustees v. Keith, July 17, 1857, 19 D. 1040. The pension was not in bonis of the deceased, and therefore did not form part of the estate subject to jus relictœ. Collation never applied to a widow, it was only recognised among children.

Argued for the third and fourth parties—When a husband had, as in the present case, made a total settlement of his estate in his will, the widow was not entitled to make such a claim as would disturb the division unless she relinquished any provision made for her by her husband during marriage. The husband had invested a large portion of his funds in paying premiums, and in the general scheme of division of his estate in the trust settlement he took account of the pension. It was not equitable that the widow should take both her jus relictœ and the conventional provision. She ought either to account for the pension to the estate, or in fixing the amount of her jus relictœ the actuarial value of the annuity as at her husband's death should be included in the estate and deducted from her one-third thereof.