Scottish Court of Session Decisions

Henrietta, Lady Gilmour, Denbrae, Cupar, Fife, and others, the trustees acting under the trust-disposition and deed of settlement of the late Sir John Gilmour, Baronet, of Lundin and Montrave, in the county of Fife, and of South Walton, in the county of Renfrew, first parties; Lieutenant—Colonel Sir John Gilmour, Baronet, of Lundin and Montrave, second party; Captain Harry Gilmour, Denbrae, aforesaid,

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third party; and the said Lieutenant—Colonel Gilmour and others, the trustees acting under the antenuptial contract of marriage between Lieutenant-Colonel James Younger, the Cottage, Blairlogie, Stirling, and Mrs Maud Gilmour or Younger, fourth parties, brought a Special Case for the opinion and judgment of the Court as to the manner of imputing and distributing the legitim fund payable out of Sir John Gilmour's estate,

The late Sir John Gilmour died on 20th July 1920, leaving a trust-disposition and deed of settlement dated 5th June 1911, by which he conveyed his whole means and estate to trustees for purposes therein set forth. He was survived by his widow and four children, viz., the second and third parties, the said Mrs Maud Gilmour or Younger, and Mrs Henrietta Walton Gilmour or Purvis, wife of Captain Robert Walter Purvis, of Gilmerton, Fife. His youngest son, Douglas Gilmour, predeceased him. By her antenuptial marriage contract Lady Gilmour had discharged her right to jus relictæ, and it was agreed by the parties that the division of the testator's moveable estate for the purposes of legitim was bipartite. The testator's daughter Mrs Purvis had similarly discharged her right to legitim by accepting in full satisfaction thereof provisions made by the testator in her favour by separate deed. Consequently the only children capable of claiming legitim were the second and third parties, and Mrs Maud Gilmour or Younger, who by antenuptial contract of marriage had assigned to the fourth parties her whole means and estate, heritable and moveable, which belonged to her or which she might acquire or succeed to during the subsistence of the marriage. By his trust-disposition and deed of settlement the testator directed his trustees to convey the whole lands belonging to him in Fife and Renfrew excepting a small entailed property to the second party. By the ninth purpose he bequeathed to the third party a legacy of £10,000 under a declaration that “the said legacy is intended by me to be and shall be in addition to the gift recently made by me to my said son of £26,442, 6s. 6d. sterling by transferring to him railway stocks representing that value, and I provide and declare further that the acceptance of the foresaid provisions in favour of my said son Harry Gilmour shall be deemed and taken to be in satisfaction to him of legitim and executry, and of all claims competent to him upon my decease.” By the last purpose he directed the residue of his estate to be paid to the second party.

The trust-disposition and settlement contained the following statement:—“And I desire to place on record that I have not by these presents made any bequests to or provisions for two of my four younger children who have not discharged their right to legitim, viz. ( first) my daughter Mrs Maud Gilmour or Younger, wife of James Younger junior, Valleyfield, New Mills, Fife, and ( second,) my son Douglas Gilmour, now or lately residing at Cirencester, in respect that in virtue of provisions which I have already made for them and those to which they may be legally entitled on my death I consider them to be amply provided for, and in respect also that I am desirous to make as ample provision as possible for my eldest son Captain John Gilmour, who will succeed to the baronetcy, and who in my opinion will require all that I can provide for him in order to maintain the position: And I further desire to place the following on record in reference to claims for legitim which will probably be advanced on the part of the said Mrs Maud Gilmour or Younger and Douglas Gilmour, viz.—( first) in the case of the said Mrs Maud Gilmour or Younger her claim will be subject to the declaration and provision contained in the antenuptial contract of marriage between the said James Younger on the first part, the said Mrs Maud Gilmour or Younger on the second part, and me on the third part, dated the 1st and 2nd, and recorded in the Books of Council and Session on the 21st, all days of February 1906, that the stocks thereby transferred by me to trustees for behoof of inter alios the said Mrs Maud Gilmour or Younger represented a net capital value of as near as might be Twelve thousand pounds sterling, and that it was thereby specially stipulated and agreed on that in the event of the said Mrs Maud Gilmour or Younger, or those in her right after my death, effectually claiming from my estate legitim or other legal rights the said sum of Twelve thousand pounds sterling thereby settled by me should be held to be and imputed as a payment to account of said legitim or other legal rights so effectually claimed; and ( second) in the case of the said Douglas Gilmour his claim will be subject to the acknowledgment, declaration, and agreement contained in a deed of provision by me in favour of trustees for inter alios the said Douglas Gilmour to which he the said Douglas Gilmour was a party, dated the 3rd and 5th, both days of April in the year 1911, whereby the said Douglas Gilmour acknowledged that the sum of Ten thousand nine hundred pounds thereby settled was a payment to him or for his behoof on account of the share of legitim that might become due to him by and through my decease, and should be held as part of the payment which might be exigible after my death on account of his legitim; and in respect that by the said deed of provision the said Douglas Gilmour agreed and declared that it should be competent to me either by inter vivos or mortis causa deed to direct to be paid to the trustees under the said deed of provision to be administered by them along with and as part of the trust-estate thereby specially settled the whole or part of the residue of the share of legitim falling to him the said Douglas Gilmour, 1 do hereby provide and declare that any balance of legitim which may be effectually claimed after my death by or on behalf of the said Douglas Gilmour shall not be paid to him, but shall be paid to the trustees for the time being under the said deed of provision, to be administed by them along with and as part of the trust estate thereby specially settled, but subject to

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this provision and declaration that the said trustees for the time being under the said deed of provision may, if they in their sole discretion think fit, advance and pay to the said Douglas Gilmour from time to time such sum or sums out of any balance of legitim effectually claimed by him as aforesaid as shall not exceed in all Five thousand pounds sterling.”

The testator died possessed of heritable property of estimated value of £92,000 in addition to the small entailed estate. His free moveable estate was estimated at £308,800. During his lifetime the testator had made over various sums of money and investments to his children. The third party had besides smaller payments received the sum of £26,442, 6s. 6d., referred to in the trust-disposition and deed of settlement as “the gift recently made by me to my said son,” but for which no recipt had been granted, and of a sum of £30,000 for which he granted a receipt acknowledging that it was paid to him “upon the footing that it is to be recognised as a sum to be imputed towards any legal rights that may be claimed by me out of my father's estate upon his death and which sum I hereby accept upon that footing.” The fourth parties had received on behalf of Mrs Younger, inter alia, a sum of £12,000 in stocks transferred to them in her antenuptial marriage contract under a provision that in the event of Mrs Younger “or those in her right after the death of her father … effectually claiming from his estate legitim or other legal rights, the said sum of £12,000 shall be held to be and imputed as a payment to account of said legitim or other legal rights so effectually claimed,” and the sum of £742, 10s., the receipt for which stated that the interest on this sum “will bring up the annual income on the funds held by us as trustees foresaid … to the sum of £500, it having been the purpose of the said Sir John Gilmour that the income on the said trust funds should be £500 per annum, which sum of £742, 10s. is to be held by us subject to the pro visions and to be applied for the purposes of the said contract of marriage.” The testator also made certain additions to the trust funds created by the deed of provisions in favour of his daughter Mrs Purves, and in addition to the sum provided for his son Douglas Gilmour by the deed of provision referred to in the trust-disposition and deed of settlement made certain further payments including a payment of £25,000 which was made on condition that it should be imputed towards any legal claim that it might be competent to advance on behalf of Mrs Douglas Gilmour and her family (if any) upon Sir John's estate, and was accepted by the said trustees upon that condition.

The Case further stated—“16. The second party has intimated to the first parties that he elects to accept the provisions of the trust-disposition and deed of settlement, and that he does not claim his share of legitim, but without prejudice to his or their right to found on his right to a share of legitim to the effect of limiting the amount of the shares of other claimants on the legitim fund. The third party has intimated to the first parties that before making his election between the provisions in his favour in the trust-disposition and deed of settlement and his legal claims he desires to have the legal questions affecting the division of the testator's estate decided by the Court. The fourth parties, as in right of the said Mrs Maud Gilmour or Younger, have intimated to the first parties that they claim her share of legitim. 17. In these circumstances, questions have arisen between the parties as to the manner of computing the legitim fund and ascertaining the shares thereof payable to the third and fourth parties. The first parties as the general disponees of the testator and the second party for the interest of the first parties contend—(1) That as neither the second or third party nor the said Mrs Younger have discharged their claims to legitim the legitim fund is divisible into three parts and not into two, and that the third and fourth parties are entitled—subject to any collation inter se—to only two of these parts. (2) That the second party, who is not claiming legitim, is not bound to collate either the heritage to which he is entitled under the testator's trust-disposition and deed of settlement and his interest in the entailed estate of West Walton or the payments made by the testator during his lifetime to him or for his behoof, as a condition of the tripartite division of the legitim fund. (3) That the legitim fund is one-half of the free moveable estate belonging to the testator as at the date of his death; and (4) That the payments of £30,000, £12,000, and £742, 10s., referred to fall to be deducted from the respective shares of legitim payable to the third and fourth parties, and that the general estate of the testator is only liable to these parties for their shares under deduction of these respective payments. The third party contends—(1) That the second party, although he has not discharged his claim to legitim, is excluded from making such a claim unless and until he collates the heritage to which he succeeded under the testator's trust-disposition and deed of settlement and his interest in the entailed estate of West Walton. (2) That the first parties as the testator's trustees and the general disponees of his estate cannot found on the second parties' right to legitim to the effect of dividing the legitim fund into three parts unless the second party has collated his heritage as aforesaid. (3) That neither the second party, who is not claiming legitim, nor the first parties as in his right, have any concern with the advances made by the testator to the third party or with the collation of these, such collation being exclusively the affair of children actually claiming legitim. (4) That the sum of £30,000 which was paid to the third party on the footing that it was to be imputed towards his legal rights falls to be dealt with only by collation with other children, if any, who actually claim legitim. (5) That the said sum of £30,000 not being in bonis of the testator at the time of his death does not fall to be deducted from the legitim fund,

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which is one-half of the free moveable estate left by the testator, and for the whole of which amount his general estate is liable. That alternatively, and on the footing that the said sum of £30,000 and also the sums of £12,000 and £742, 10s. do fall to be deducted, the third party maintains that the said sums were in bonis of the deceased as at the date of his death and fall to be taken into account in fixing the legitim fund. (6) That as regards the sums £26,442, 6s. 6d., £5000, and £1500 given to the third party by the testator as afore mentioned, and the sums of £5000, £1100, and £400 given to the fourth parties and the said Mrs Younger by the testator as afore mentioned, these having been pure gifts and not having been imputed by the testator to the shares of legitim falling to the third and fourth parties respectively, they do not fall to be collated or taken into account as in a question between the third and fourth parties in ascertaining their respective shares of legitim. (7) That the sum of £742, 10s., which was paid to the fourth parties as an addition to the trust funds then held by them, and is expressly stated to be held by them subject to the provisions of the marriage contract, is equally with the £12,000 originally paid under the said marriage contract to be imputed as a payment to account of legitim, and therefore falls to be collated by the fourth parties in ascertaining their share of legitim. (8) That no interest is due on the advances which fall to be collated by the children claiming legitim. 19. The fourth parties contend—(1) That inasmuch as the second party is not claiming legitim he is not concerned with any provisions made by the testator to the fourth parties or Mrs Younger or with the collation of these, such collation being exclusively the affair of persons effectively claiming legitim. (2) That inasmuch as the second party is not claiming legitim it is not competent to the first parties to found on any right to legitim which might otherwise be competent to the second party to the effect of limiting the sum payable as legitim to the other children claiming legitim. But if it be held that it is competent for them to do so, that then ( a) the heritage to which the second party is entitled under the testator's trust-disposition and settlement and also his interest in the entailed estate of West Walton, and ( b) the payments made by the testator to or for behoof of the second party, fall to be collated. (3) That ( a) the said sums of £26,442, 6s. 6d., £5000, and £1500, and also the said sum of £30,000, and ( b) the said sums of £5000, £742, 10s., £1100, and £400, and also the said sum of £12,000, fall to be collated as in a question between the third and fourth parties so as to increase the amount divisible between them in name of legitim, but not to thereby diminish the legitim fund payable out of the testator's general estate. (4) That the said sums of £12,000 and £742, 10s. were not in bonis of the deceased at the date of his death, and do not fall to be deducted from the amount payable to these parties in name of legitim out of the general estate of the testator. Alternatively these parties contend that these sums, and also the said sum of £30,000, fall to be treated as part of the moveable estate of the testator and one-half thereof credited to the legitim fund. (5) That interest at the rate of 5 per centum per annum is due upon the advances which fall to be collated by the children claiming legitim.”

The questions of law were—“1. Is it a condition of the first parties or the second party maintaining that the division of the legitim fund is tripartite that the second party must collate—(1) Both ( a) the heritage to which he is entitled under the testator's trust-disposition and settlement and his interest in the entailed estate of West Walton, and ( b) the payments made by the testator to or for behoof of the second party; or (2) either, and if so which, of ( a) the said heritage and interest in the said entailed estate and ( b) the said payments? 2. In ascertaining the amount of the legitim fund ( a) is the amount one-half of the testator's free moveable estate after crediting the said estate with all or any, and if so which, of the said sums of £30,000, £12,000, and £742, 10s.? or ( b) Is the said amount one-half of the testator's free moveable estate without crediting the said estate with all or any, and if so which, of the said sums? 3. In ascertaining the sums payable out of the legitim fund to the third and fourth parties respectively do there fall to be deducted ( a) in the case of the third party the said payment of £30,000, and ( b) in the case of Mrs Younger the said payments of £12,000 and £742, 10s., or either, and which of them. 4. Do ( a) the sums of £26,442, 6s. 6d., £5000, £1500, and £30,000, ( b) the sums of £5000, £742, 10s., £1100, £400, and £12,000 or any of them, and if so which of them, fall to be collated as in a question between the third and fourth parties? 5. In ascertaining the amount of the sums to be so collated does interest require to be added from the dates of payment, and if so at what rate?”

Argued for the first and second parties—1. Although the second party was the heir in heritage and was not collating, he was to be counted as a caput in the division of the legitim fund. The right of the heir to legitim was the same as that of the other children. It was original, depending not on collation but on his being one of the bairns. Collation had been introduced when primogeniture was established, but it did not affect the original right— Justice v. His Father's Disponees, 1737, M. 8166; Trotter v. Rochead, 1681, M. 2375; Sinclair v. Moodie 1768, M. 8188; Panmure v. Crokat, 1856, 18 1). 703, per Lord Curriehill, p. 713; Kintore v. Kintore, 1884, 11 R. 1013, 21 S.L.R. 647 1886, 13 R. (H.L.) 93, 23 S.L.R. 877; Fisher v. Dixon, 1840, 2 D. 1121, per Lord Fullerton at p. 1138, 1841, 3 D. 1181, 1843, 2 Bell's App. 63; M'Laren, Wills and Succession, pp. 162 to 164; Fraser, Husband and Wife, pp. 999, 1051, 1052. The legitim fund was therefore divisible into three parts. The part which the heir might have claimed on collation enured to the general disponees, on the same principle which applied in collation inter liberos— Fisher v. Dixon, 1840 ( cit)

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This principle was based on equity— Monteith v. Monteith's Trustees, 1882, 9 R. 982, per Lord Justice-Clerk at pp. 988 and 992, Lord Young at p. 996, Lord Rutherford Clark at p. 1008, 19 S.L.R. 740; Coats' Trustees v. Coats, 1914 SC 744, 57 S.L.R. 690; Collins v. Collins' Trustees, 1898, 35 S.L.R. 641; Cairns v. Cairns' Trustees, 1916, 1 S.L.T. (O.H.) 42—and not on an implied assignation to the trustees as appeared from M'Laren, Wills and Succession, p. 161, and Nisbet's Trustees v. Nisbet, 1868, 6 Macph. 567, 5 S.L.R. 369. The equity applied as much in the case of collation inter hæredes as in collation inter liberos. There was no decision against this contention. The first question therefore fell to be answered in the negative. Branch ( b) was ruled by the decisions in Monteith v. Monteith's Trustees; Coats' Trustees v. Coats. The advances to the second party had ceased to be part of the estate, and he could not be called upon to collate them when he was abiding by the will. The following cases were also referred to on the first question:— Little Gilmour v. Little Gilmour, 13th December 1809, F.C. at p. 454; Johnston v. Johnston, 1814; Hume's Decisions, 290; Anstruther v. Anstruther, 1833, 12 S. 140, 14 S. 272, 1836, 1 Shaw & Maclean, 463, 2 Shaw & Maclean, 369; Breadalbane v. Chandos, 1836, 2 Shaw & Maclean, 377; Keith's Trustees v. Keith, 1857, 19 D. 1040; Newbigging's Trustees v. Steel's Trustees, 1873, 11 Macph. 411; Adam's Executrix v. Maxwell, 1921 S.C. 418, 58 S.L.R. 254; Dawson v. Dawson's Trustee, 1913, 2 S.L.T. 210; Gilmour v. Gilmour's Trustees, 1920, 2 S.L.T. 369. 2. Question 2 ( a) should be answered in the negative, 2 ( b) in the affirmative, and 3 ( a) and ( b) in the affirmative. The advances formed no part of the deceased's estate at the date of his death, and could not be taken into account in estimatting the amount of the legitim fund. On a true construction of the documents they were advances in partial discharge of legitim, and could be set off by the general disponees against claims for legitim. They were the consideration of a bargain made by the father with a view to his testamentary freedom— Young v. Young's Trustees, 1910 S.C. 275, per Lord President and Lord Kinnear, 47 S.L.R. 296. To hold that a partial discharge of legitim during the parent's lifetime was not competent would put an unreasonable restriction on a father's power of making such payments. The question was not dealt with in the cases of Panmure v. Crokat and Keith's Trustees v. Keith, 1857, 19 D. 1040. If the documents did not make it plain that collation was intended, Young v. Young's Trustees applied. The first and second parties submitted no contention in regard to the fourth and fifth questions.

Argued for the third party—Question 1, or in any event question 1 (2) ( a), should be answered in the affirmative. The heir in heritage had no right to legitim unless he collated. His right only emerged when he collated, and was properly a right to the mixed estate and not to legitim at all—Ersk. Inst., iii, 9, 3; Bell's Prin., secs. 1590, 1911; Little Gilmour v. Little Gilmour ( cit.), per Lord Meadowbank at pp. 456, 459; Law v. Law, 1553, M. 2365; Murray v. Murray, M. 2373; Newbigging's Trustees v. Steel's Trustees ( cit.), per Lord Ardmillan at p. 412; Adam's Executrix v. Maxwell ( cit.), per Lord Dundas at p. 432. The cases of one child did not help the first and second parties' contention. There was no room then for collation. But where there were two children capable of taking legitim the heir could not take without collating although the other child accepted a provision— Robertson v. M'Vean, 1843, 2 Bell's App. 87. The division of the legitim should therefore be bipartite. Renunciation of legitim did not operate in favour of the father— Hog v. Lashley, 1804, 4 Paton 581. Even if the heir had an original right to legitim the trustees could not claim through him so as to have him counted in the division of the legitim fund. They might do so in the case of a child accepting a conventional provision, because they could be regarded as buying a claim on the moveable estate, but they could not be so regarded in the case of the heir. Coats' Trustees v. Coats, relied on by the first and second parties, did not apply to the case of trustees claiming through the heir— Robertson v. M'Vean; Fisher v. Dixon; Dawson v. Dawson's Trustee; Breadalbane v. Chandos ( cit.), per Lord Chancellor at p. 401. The absence of such a claim from the cases of Breadalbane v. Chandos and Fisher v. Dixon supported the third parties' contention. 2. The sums referred to in question 2 were to be dealt with by collation, and question 2 ( a) fell to be answered in the negative and question 2 ( b) in the affirmative. It was a simple case of collation inter liberos—Ersk. Inst., iii, 9, 3; Stair, iii, 8, 45; Bell's Prin., sec. 1588; M'Laren, Wills and Succession, vol. i, p. 162. Young v. Young's Trustees, which was the only authority against collation, could be distinguished on the terms of the receipt. Alternatively if it was held that there was a bargain here, as in Young v. Young's Trustees, then it was in favour of the general estate, and question 2 ( a) would be answered in the affirmative and 2 ( b) in the negative. A father had no power to bargain in favour of the dead's part, his whole estate being until his death a unum quid. These sums were either in bonis or not. If in bonis it must be of the whole estate— Panmure v. Crokat ( cit), per Lord Ivory at p. 711; Clark v. Burns, 1835, 13 S. 326; Keith's Trustees v. Keith ( cit.), per Lord Ardmillan at p. 1051, Lord President at p. 1057, and Lord Ivory at p. 1061; Fraser, Husband and Wife, vol. ii, p. 999. The contrary decision in Nisbet v. Nisbet, 1726, M. 8181, was unsupported. “Imputation” implied collation— Coats' Trustees v. Coats ( cit.), per Lord Mackenzie at p. 752; Breadalbane v. Chandos ( cit.), per Lord Chancellor at p. 400. In Young v. Young's Trustees the question as to whether the bargain was in favour of the general estate or not was precluded by the admission of the amount of legitim. 3. If it were held that the sums in question 2 were to be dealt with by collation the answer to question 3 must be in the negative. If it were held that there was

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a bargain by the testator in favour of the whole estate the answer to question 3 must be in the affirmative. 4. Question 4 depended on the intention of the testator to be ascertained from the terms of the receipts and the surrounding circumstances. The smaller sums must in view of the size of the estate be regarded as presents. On the terms of the ninth purpose of the trust disposition and settlement it was apparent that the sum of £26,442, 6s. 6d. was in satisfaction of executry as opposed to legitim, and was therefore not to be dealt with by collation—M'Laren, Wills and Succession, vol. 1, p. 160; Douglas v. Douglas, 1876, 4 R. 105, 14 S.L.R, 54; Duncan v. Crichton's Trustees, 1917 S.C. 728, per Lord Cullen at p. 732, 54 S.L.R. 460—but to be treated as a gift. 5. The fifth question should be answered in the negative, It was contrary to practice to charge interest. The advances were in implement of the obligation to maintain— Johnston v. Cochrane, 7 S. 226. The only decision in favour of charging interest had not been followed— Nisbet's Trustees v. Nisbet ( cit.), per Lord Neaves at p. 576; Monteith's Trustees v. Monteith ( cit.), per Lord M'Laren at p. 985. Interest was not due here either ex pacto, ex lege, or ex mora— Blair's Trustees v. Payne, 1884, 12 R. 104, per Lord Fraser at p. 109, 22 S.L.R. 54.

Argued for the fourth parties—1. The legitim fund should be divided into two parts in accordance with the contentions of the third party. This contention was further supported by M'Call's Trustee v. M'Call's Curator Bonis, 1901, 3 F. 1065, 38 S.L.R. 778. The only part of the moveable estate to which the heir had an original right were the heirship moveables—Mackenzie's Institutes, 8th ed., p. 217; Ersk. Prin. (Guthrie Smith) pp. 634, 635. There was a fundamental difference between collation inter hæredes and inter liberos. 2. The second and third questions should be answered in accordance with the contentions of the third party. If the effect of the decision in Young's Trustees v. Young ( cit.) was that the father could bargain in favour of dead's part it was a bad decision, and should be reviewed. Such a bargain, which defeated the rights of other children to legitim, was illegal— Henderson v. Henderson, 1728, M. 8199; Lashley v. Hog ( cit.) at p. 640. 3. All the sums referred to in question 4 fall to be collated. The presumption was that advances to children were to be collated, and there was nothing here to exclude it—Fraser, Parent and Child, p. 1035; Bell's Prins., sec. 1588; Douglas v. Douglas ( cit.), per Lord Justice-Clerk at p. 127; Duncan v. Crichton's Trustees ( cit.). On the other hand the terms of the settlement showed the testator's intention to be that all the advances to his younger children were to be in satisfaction of legitim. It would require a very clear expression of intention to justify the Court in bolding that the £26,442, 6s. 6d, was a gift. 4. If the advances fell to be collated, then interest which was part of the advance also fell to be collated. Without interest there would be no proper equalisation of shares—Fraser, Parent and Child, p. 1037; Johnston v. Cochran, 1829, 7 S. 226. This case was still an authority although it had been doubted. In Monteith v. Monteith's Trustees ( cit.) the question was related to liferent, and the opinions of Lord M'Laren and Lord Craighill could not be taken as overruling Johnston v. Cochran. Skinner v. Skinner, 1775, M. 8172, did not conflict with Johnston v. Cochran.

At advising—