Scottish Court of Session Decisions

By antenuptial contract of marriage dated 30th October 1860 between William Munro and Ann Gray, William Munro conveyed the whole estate that should belong to him at his death to trustees for behoof of his wife in liferent should she survive him, under the declaration that on her death without issue of the marriage his estate should descend to his next-of-kin or to such other party to whom he might bequeath the same.

There were no children born of the marriage. On 8th June 1885 William Munro died survived by his wife Mrs Ann Gray or Munro. In virtue of the conveyance in their favour in the marriage-contract the trustees were appointed Mr Munro's executors, and administered his whole estate.

In 1886 there was discovered a holograph last will and testament dated 12th March 1873 made by Mr Munro. In it he appointed trustees and executors, and made, inter alia, the following bequests:—“I hereby authorise my said trustees and executors to pay over to my dear wife Ann Gray immediately, or as soon after my decease as possible, the sum of two hundred pounds sterling for funeral expenses and suitable mournings for herself and other friends of mine who she may wish to see in suitable mourning upon the occasion; and I further desire my said trustees and executors to keep a sum or sums of money invested safely so as to yield a life interest to my

Page: 762↓

said wife amounting to one hundred and twenty pounds sterling annually so long as she remains my widow, and after her decease the said sureties may be realised and divided equally between my nephews and nieces, or, if agreed to amongst themselves, the said sureties may be held on their joint account, and the interest arising therefrom divided amongst them till the youngest of them attains their majority.” The residue of his estate he bequeathed to his brothers equally amongst them.

After this will was discovered Mrs Munro elected to abide by the provisions in the marriage-contract which gave her the liferent of her husband's whole estate, and thus the provision for an annuity to her of £120 contained in the will was not acted on. She died on 1st July 1898, and down to the date of her death the marriage-contract trustees continued to manage and administer the whole trust estate.

After Mrs Munros death questions arose as to the amount carried by the bequest to the testator's nephews and nieces of the capital funds which in his will he directed to be set aside to meet the annuity of £120.

For the settlement of the point a special case was presented to the Court by (1) the marriage-contract trustees, (2) the nephews and nieces of the testator, and (3) John Munro, one of the testator's brothers. The second parties maintained that their bequest under the will amounted to £4000, which the parties were agreed was the capital required to yield £120 per annum at the lowest rate of interest on trust investments prevailing during the viduity of Mrs Munro, and which was obtainable at her death. Alternatively, they maintained that said bequest amounted to £3521, 4s. 7d., which the parties were agreed was the capital required to yield £120 per annum upon trust investments according to an average of the rates of interest current during the viduity of Mrs Munro. On the other hand, the third party maintained that the provision to the nephews and nieces should not exceed the sum of £3500, which the parties were agreed was the capital required to yield £120 per annum upon trust investments according to current rates of interest at the decease of William Munro.

The questions at law were—(1) Is the amount of the bequest to the nephews and nieces of the testator the said sum of £4000? or, Is it the said sum of £3521, 4s. 7d.? or, Is it the said sum of £3500?