Scottish Court of Session Decisions

The trust-settlement confers on the widow the liferent right of the truster's whole household furniture and plenishing, and directs the trustees to make payment to her of a free annuity of £70 during all the days of her life, in addition to the annual payment to which she would be entitled from the Merchant Company. These provisions were declared to be in full of her legal claims of terce and jus relictœ. In the view of these provisions forming a burden on the trust-estate, it appears to me that the 9th purpose of the trust, disposing of the residue of his estate, heritable and moveable, was expressed as it is, “ upon the death of my said spouse, and the youngest of my said children having attained majority or the whole or them being married, or in the event of my wife having predeceased me, then upon the youngest of my said children attaining majority, or upon the marriage of all my children,” a vidimus of the whole estate is to be prepared by the trustees with a view to its division among his children and their issue in the manner directed by the deed. It will be observed that, irrespective of the wife's death, which might or might not have happened during the truster's life, the period for division of the estate and the payment of their respective shares to the children is fixed to be the date of the youngest of them attaining majority or of all of them being married previous to that date. As among the children, therefore, their father had fixed the period when his estate should be divided and paid over to them, share and share alike, or set aside for their behoof. The division was to be made into so many shares as there were children then surviving, and of children who had died leaving lawful issue then surviving. The clause, however, commences with the words “upon the death of my said spouse,” which apparently introduces a condition suspensive of the period for division and payment; but it has to be considered for what purpose those words were introduced into his settlement by the truster. Effect must be given to his intention so far as this can be gathered from the deed, and if the obvious purpose to serve which this condition has been inserted is satisfied or no longer exists, the inference seems to be but fair and rational that the truster's intention as to the period of division and payment of his estate to his children should not be thereby affected. This would have been the case had she predeceased her husband; and the same would have resulted from her subsequent death before tlie majority or marriage of the youngest child. At that period, then, it was that the truster evidently contemplated that his family should enter on the enjoyment respectively of their several shares in the succession. But the wife had an interest in respect of her liferent provisions in the trust-estate, which required to be guarded; and on this account it evidently was that the period of division and payment was made dependent upon her death. It by no means follows that the period fixed by the deed for his children entering on the enjoyment of his estate and taking a vested interest therein was intended to be thereby effected. At all events the widow's repudiation of her liferent provision put an end to the purpose of the clause by which her security was provided for; and it seems to follow that with her interest in the deed and the extinction of the liferent provisions the condition for her security should also fall, and become effete and useless. It is not conceivable on any rational ground that, being guarded against the children taking their provisions when in non-age, and fixed the majority of the youngest as the period for division and payment, the truster would have made the uncertain event of his wife's possible survivance to extreme old age, after she bad ceased to have any interest under the deed in the trust-estate, the cause of an indefinite prolongation of the period when the beneficial interests of his children in his estate were to take effect. No reasonable motive for such a declaration by the truster can well be imagined. I think therefore there is good reason in this case for holding, as the Court held in the case of Annandale v. Macniven, 9th June 1847, that the widow, by repudiating the trust-settlement, placed the funds in the same situation as if the deed had contained no life provisions in her favour, and entitled all interested to a division on the same footing as if her interest under the deed had been extinguished by her death.

The residuary clause in the case of Annandale, just as in this case, contemplated the death of the widow, to whom the liferent of the estate was provided by the truster so long as she remained his widow, and if she married a second time restricted her provision to an annuity of £50. She repudiated the conventional provisions just as in the present case, and betook herself to her rights of terce and jus relictœ. In this species facti the Court held the act of the widow to operate the same effect upon the interests of the other parties under the settlement as if she had died—Lord Mackenzie observing, that “the obvious common sense meaning of the deed is, that after the widow's liferent comes to an end in any way there shall be a division, and that plainly was the truster's intention.” Some hesitation was expressed by Lord Fullerton, on the ground that subsidiary interests in the estate might be thereby prejudiced. And no doubt this was the difficulty which the Court had to overcome in arriving at the conclusion which they did. For the trust-deed was so expressed as in appearance to postpone the vesting of the estate in the beneficiaries till the death of the widow—at least, as much as the expressions employed in this deed do. Only, on the death of the widow the beneficiaries were to take. But on the same grounds as their effect ought, as I think, to be disregarded in this case, the Court got over their effect in the case of Annandale, and that decision has in subsequent cases been recognised as an authoritative precedent when the same species facti is found to exist.

There is no doubt a distinction between this case and that of Annandale, the effect of which has to be considered. The trust-deed in that case had been executed on death bed, and was reduced ex capiti lecti by the heir-at-law. The heritable estate was thus taken out of the trust succession, and the personal or moveable estate alone remained under the management of the trustees. In this case the heritable as well as the moveable estate form the trust succession, and the heritable subjects under the management of the trustees are burdened with the widow's terce. To this legal burden these subjects have become subject by her repudiation of the deed. And it may be asked, how that division which the truster appoints can take place as regards these subjects while the widow survives. The answer appears to me clear enough. The widow, by procuring herself kenned to her terce will have a preferable claim to one-third of the rents of the whole heritage, in whomsoever vested, so long as she lives. But the existence

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