Scottish Court of Session Decisions

Page: 108↓

The parties to this special case were (1) and (2) Mrs Elizabeth Train, widow of the late Thomas Campbell Train, as administratrix of his estate and as an individual, and (3) the Rev. John Train, brother of and next-of-kin to the said T. C. Train, and (4) the trustees of the late Thomas Train, father of T. C. Train and the Rev. J. Train.

Thomas Campbell Train died in 1897 intestate and without issue. He was survived by his widow. There was no marriage-contract. At the time of his death he was domiciled in Ireland. His estate consisted, inter alia, of sums contained in two bonds and dispositions in security in ordinary form over heritable property situated in Scotland. It was agreed that by the law of Ireland his widow was entitled to one-half of the residue of his moveable estate. “(Stat. 10) As regards the said two bonds and dispositions in security, the second party maintains that she is entitled to her terce of the deceased's share of the said bonds and dispositions in security, and in addition to one-half of the deceased's share of the said bonds under burden of her terce. She maintains that the law of Ireland, as the law of her husband's domicile, is the law which falls to be applied in determining the succession to said bonds and dispositions in security as moveable estate, subject to her terce as aforesaid. She further maintains that by the law of Scotland she is entitled to the rights claimed by her as aforesaid. The party of the third part, who is the only brother, and by the law of Scotland sole next-of-kin and heir of the deceased Thomas Campbell Train, maintains that the succession to the said heritable bonds is regulated and ought to be determined by the law of Scotland, and that by the law of Scotland the second party is entitled to terce out of said bonds, and to that only, and that the said bonds belong quoad ultra to the third party.”

By the Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. c. 101) it is enacted, sec. 117, that after 31st December 1868 “No heritable security granted or obtained either before or after that date shall, in whatever terms the same may be conceived, except in the cases hereinafter provided, be heritable as regards the succession of the creditor in such security, and the same, except as hereinafter provided, shall be moveable as regards the succession of such creditor, and shall belong after the death of such creditor to his executors or representatives in mobilibus in the same manner and to the same effect as such security would, under the law and practice now in force, have belonged to the heirs of such creditor, … provided that all heritable securities shall continue and shall be heritable quoad fiscum, and as regards all rights of courtesy and terce competent to the husband or wife of any such creditor, and that no heritable security, whether granted before or after marriage, shall to any extent pertain to the husband jure mariti, where the same is or shall be conceived in favour of the wife, or to the wife jure relictæ, where the same is or shall be conceived in favour of the husband, unless the husband or relict has or shall have right and interest therein otherwise: Declaring nevertheless that this provision shall in no way prejudice the rights and interests of wife or husband, or of the creditors of either, in or to the byegone interest and annual rents due under any such heritable security, and in bonis of the husband and wife respectively prior to his or her death; and further, provided that where legitim is claimed on the death of the creditor, no heritable security shall to any extent be held to be part of the creditor's moveable estate in computing the amount of the legitim.”

The opinion of the Court was asked upon, inter alia, the following question:—“Is the second party entitled to terce out of her husband's share of the said heritable securities, and in addition to one half of said share under burden of said terce?”

Argued for the second party—There is no doubt the widow is entitled to terce out of the sums in the bonds. They are Scots heritage, except so far as their nature is altered by the Act of 1868. Sec. 17 of the Titles to Land Consolidation Act provides for the widow's right to terce. The bonds remain heritable till the claim to terce is satisfied. After satisfying the terce they become moveable. This is confirmed by sec. 119 of the Act. Succession to moveable estate is regulated by the law of the deceased's domicile, i.e., in this case Ireland. By the law of Ireland the widow is one of the heirs in mobilibus. She is therefore entitled to share in her husband's moveable estate, which includes the balance of the sums in the bonds. There is no authority on the point.

Argued for the third party—Heritable securities are heritable property, and as such regulated by the law of Scotland. The widow has a claim upon it as upon all heritage, but she is put to an election whether she will have it treated as heritable or moveable. If she claims her right of succession to heritage, she has no claim on the same subject as moveable property. This is shown by the Act excluding the widow's jus relictæ for the sums in the bonds. It could never be the intention of section 117 of the Act to give the widow two claims of succession—one as to heritage and another as to moveable property. The law is not altered further than to attain the object of the statute— Frake v. Carbery, 1873, L.R., 16 Eq. 461; Duncan v. Lawson, 1889, 41 Ch. D. 394. “Representatives in mobilibus” in the statute means representatives in mobilibus according to the law of Scotland, which does not include the widow.