Scottish Court of Session Decisions

John Smith Urquhart, distiller, Elgin, died on 13th February 1898. He had been twice married, and was survived by five children by his first marriage, of whom two were minors and the others in pupilarity. He was also survived by his second wife Mrs Mary Simon or Urquhart, and by one child of his second marriage Olivia Urquhart, born in February 1896. There was no marriage-contract between Mr Urquhart and either of his wives.

On 29th November 1897 the said John Smith Urquhart executed two testamentary writings in the following terms:—“I, John Smith Urquhart, in the event of my death, do hereby leave and dispone to my wife Mrs Mary Simon or Urquhart, all and whole my whole estate, heritable and moveable, whom I appoint my sole executrix, under the obligation of her paying all my just and lawful debts, and bringing up

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and educating my children, and I appoint her sole guardian and curator of my children, and I grant her full power of sale of said estate, and I appoint William Scott, solicitor, Elgin, to be law-agent on the said estate, he receiving the usual remuneration for his trouble.” The second was as follows—“I appoint the Reverend Robert Cowan, Elgin, and Charles C. Doig, architect, Elgin, to act along with my wife as executors and curators to my said children.”

The testator left both heritable and moveable estate. The moveable estate amounted to £3709, 13s. 6d, and the nett total estate, both heritable and moveable, to £6259, 13s. 6d.

Some time after the testator's death his widow married John Carson Abbott, with whom she went to live in Birmingham. Her child Olivia Urquhart lived with her. The testator's other children were boarded in Elgin, where they attended the Elgin Academy, a high class secondary school. Mrs Abbott did not desire the children of the testator's first marriage to live in family with her, but was willing to concur with their guardians in making all reasonable provision for their maintenance and education.

In these circumstances various points arose, for the settlement of which a special case was presented to the Court by (1) Mr Urquhart's executors appointed in his testamentary writings; (2) Mrs Abbott, with consent of her husband; and (3) Mr Urquhart's children and their curators and guardians.

The questions at law were, inter alia, the following:—“(1) On a just construction of the settlement and codicil of the said John Smith Urquhart, is the second party beneficially entitled to his whole estate, heritable and moveable, and entitled to have said estate conveyed to her, or has a trust been thereby constituted in the persons of the first parties? (10) Are the testator's children entitled to claim legitim out of his estate in addition to implement of the obligation imposed by his settlement on the second party with regard to the upbringing and education of the children?”

Argued for the third parties— On the first question—By the testator's settlement and codicil a continuing trust was constituted for payment of the testator's debts, and thereafter (1) for application of the free annual income of the testator's estate, in the first place, for the upbringing and education of the testator's children in a manner suitable to their station (which application was to continue as regards each child until he or she was actually self-supporting); and in the second place for payment to the second party of the balance of the income not expended upon the children; and (2) for payment of the capital of the testator's estate to the second party on the foregoing trust purposes being fulfilled. It Ainslie v. Ainslie, December 8, 1886, 14 R. 209, the word “executors” had been construed to mean “trustees.” It was plain in the present case from the obligations laid upon the executors, from the power of sale granted to them, and from the appointment of a law-agent on the estate that a continuing trust was constituted by the deeds— Macphcrson v. Macphersn's Curator Bonis, January 17, 1894, 21 R. 386. 2. On the tenth question—In any view, the testator's children were entitled when they were of age to claim legitim out of his moveable estate without prejudice to the obligations imposed by his settlement upon the second party by providing for their upbringing and education— Howden v. Crichton, May 18, 1821, 1 S. 14; Nicolson's Assignee v. Macalister's Trustees, March 2, 1841, 5 D. 675: White v. Finlay, November 15, 1861, 24 D. 38.

Argued for second party—On a sound construction of the settlement and codicil the second party was beneficially entitled to the whole estate, heritable and moveable, of the testator, and was entitled to have the estate handed over to her. The obligation imposed on her of bringing up and educating the children was a purely personal obligation. The children and their guardians had only a right to enforce performance by her of this personal obligation, and to apply for behoof of the children the funds which she might hand over to them from time to time for the upbringing and education of the children, and her obligation was limited to the period when the children respectively reached an age when they were able to maintain themselves. This was a small estate, and the intention of the testator was to give his widow a free hand in dealing with it, and not tie her down to have to invest the funds in trust investments. No trust was constituted, and the widow was entitled to deal with the funds as she chose.— Murray v. Macfarlane's Trustees, July 17, 1895, 22 R. 927; Lamb v. Eames, 1871, L.R., 6 Ch. App. 597. The case of Macpherson, supra, did not apply, as in that case there was unquestionably an absolute gift, while Ainslie, supra, was a typical case in which it was absolutely certain that the testator in appointing executors had meant to appoint trustees. 2. On the tenth question—It was settled that a provision under a partial settlement did not exclude legitim if the latter was not specifically excluded. But that was not the case where the settlement was universal. In such a case if benefit was taken from a provision, he who took the benefit was not also entitled to legitim. In short, the children were not entitled to legitim over and above the provisions in their favour in the settlement— Macfarlane's Trustees v. Oliver, July 20, 1882, 9 R. 1138; Davidson's Trustees v. Davidson, July 15, 1871, 9 Macph. 995. The case referred to on the other side did not help their case, In Howden, supra, the settlement was treated as a partial one; in Nicolson, supra, it was held that the legacy must be imputed towards legitim, and the case of White, supra, was entirely in favour of the contention of the second party.