Scottish Court of Session Decisions

The Lord Ordinary ( Kinloch) repelled the plea, holding that the fact of the defenders, the trustees, being presently vested in the heritable property in Edinburgh, was sufficient by itself to give jurisdiction to the Court in a question arising out of a transaction expressly engaged in by them in their trust capacity.

The defenders reclaimed.

Clark and Balfour for them.

Shand and Keir for respondent.

The following authorities were cited:— Ferrie, 9 S., 854; Magistrates of Wick, 12 D., 299; Cruick-shank, 5 D., 733; Kirkpatrick, 16 S., 200.

At advising—

Lord President—The parties called as defenders in this action are, in the first place, the trustees and executors of the late John Charles, and, in the second place, the beneficiaries under the first trust-deed. The object of this action is to secure to the pursuer, as widow, her jus relictæ, and the objection that is taken to the jurisdiction of the Court is that the parties, except one of the executors named Paterson, are resident in England, and are therefore not subject to the jurisdiction of the Court ratione domicilii. It may be quite true that they are not subject to the jurisdiction of the Court ratione domicilii, but it is alleged that they are all, both trustees and beneficiaries, subject to the jurisdiction of the Court in respect of their being owners of heritable estate in Scotland. It appears to me that the simple question is, Whether they are or are not owners of heritable estate in Scotland. There may be other grounds on which the jurisdiction of the Court may be sustained, but that single ground, if established, is sufficient. Now, how do the facts stand? There are no doubt two trust-dispositions by Charles; one of them, the first, called a disposition and assignation, is to a certain extent a deed intended to come into operation during the life of the truster, and vested certain rights and interests in certain beneficiaries. The other, which conveys his heritable estate and nominates the defenders as executors, is a testamentary deed. It has been said that there are here two separate trust-writings, and that it is incompetent in this question to confuse them, or take them together, as if there could arise out of these two deeds a single deed; and that, on the contrary, the trusts to be administered are totally separate. To a certain extent the purposes of the two deeds are separate. The purposes of the first deed are to give certain special funds to particular beneficiaries, and after that to hold the residue for behoof of two of the defenders in this action, Jane and Mary Charles. The second deed, which contains a conveyance of his heritable property, gives it to these trustees for the sole benefit of these two ladies. Now, under the combined effect of these two deeds, it appears to me that the trustees hold, for behoof of Jane and Mary Charles, the residue of the truster's moveable estate and the heritable estate in question. The interests in these two subjects are identical, and the question is, whether the trustees, in that state of circumstances, are not owners of that heritable estate so far as the formal title is concerned, and Jane and Mary Charles the beneficial proprietors? It seems to me incontrovertible that they are so; and if that be the case, these parties, as trustees and beneficiaries, owners of heritable estate in Scotland, are necessarily subject to the jurisdiction of this Court as trustees and beneficiaries. That is my simple ground of judgment, and I think there is not much room for doubt. My only difficulty is in adopting the Lord Ordinary's interlocutor as it stands. I am not sure whether he thinks there is room for any farther discussion before satisfying the production. I see no necessity for that. The other defences all resolve into the same question, or else they are not objections to satisfying the production at all, and the proper course will be to refuse them all as against satisfying the production. I am therefore inclined to repel the preliminary pleas as pleaded by the defenders against satisfying the production, and to appoint the production to be satisfied.

Lord Curriehill—I am of the same opinion. One thing is clear, that this Court is the proper forum for trying this ultimate question, namely, whether this pursuer, the widow of a domiciled Scotchman, can enforce payment of her jus relictæ, that is, of the one-third of the executry left by her husband, which she says is hers by law. Certain deeds granted by the husband are said to stand in her way, and she has accordingly quite competently and properly brought a reduction of these

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