Scottish Court of Session Decisions

This was an action brought by three of the surviving children of the late Murdo Mackenzie, of

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Dundonnell and Mrs Ross or Mackenzie, his wife, and, as such, heirs in mobilibus of their mother, against the sole surviving trustee and representatives of the late Hugh Mackenzie of Dundonnell, concluding for payment to them of their proportion of the jus relictœ due to their deceased mother at the date of the dissolution of the marriage between her and the said Murdo Mackenzie.

Murdo Mackenzie died in May 1845, survived by seven children and his wife Mrs Ross or Mackenzie. Mrs Mackenzie died in June 1856, survived by five children of the marriage between her and the said Murdo Mackenzie.

On 14th July 1838, the said Murdo Mackenzie executed an entail of his estate of Dundonnell in favour of the said Hugh Mackenzie, his eldest son, and the heirs whomsoever of his body, whom failing, the other heirs of tailzie therein specified, of the lands and estates of Dundonnell, and others therein described, but always under the conditions, prohibitions, provisions, and declarations therein set forth, reserving thereby to himself, however, full power and liberty, even although the said deed of entail should be recorded, to alter, innovate, or revoke the same, or to execute a new deed of tailzie and settlement; and further, reserving the whole effect of any trust-deed which might be executed by him for the purpose of making provisions for his younger children, or for other purposes.

Murdo Mackenzie further executed a trust-settlement, dated 5th March 1844, and codicil annexed, dated 1st April 1845, whereby he assigned, disponed, conveyed, and made over, to the said Hugh Mackenzie, his eldest son, and the now deceased Robert Warrand, his nephew (as well as to certain other persons who did not accept of the trust), and to the survivors and survivor of them, all and whatever bonds, personal and heritable, bills and mortgages, bank-receipts, debts, and sums of money, which belonged to him, or to which he should have right at the time of his decease, with power to sue for, uplift, and discharge the same; and also the rents of his whole lands and estates which should fall due and be payable at the first term of Martinmas after his death, but in trust only for certain purposes mentioned in the trust-deed.

By this deed the truster left considerable legacies to various parties, and, among others, to the pursuers of the present action. The following clause was also inserted in the deed, viz.:

“And should the funds hereby conveyed as aforesaid to my trustees be found, contrary to my expectation, insufficient for the above payments,—considering that in the entail which I have made of my lands and estate, I have reserved power to burden the same to such extent as I shall deem necessary with reference to provisions for my younger children, I hereby farther assign and convey to my said trustees the yearly rents of the whole lands and salmon fishings which I have purchased lately, belonging to the family of Cromertie, until all the aforesaid payments shall have been made and satisfied.”

There was no contract of marriage, either antenuptial or post-nuptial, between the said Murdo Mackenzie and his wife, the said Mrs Christy or Christian Ross or Mackenzie; and the said Murdo Mackenzie did not at any time, by deed inter vivos or mortis causa or otherwise, make any provision for his said wife in case of his predecease, nor did she ever renounce her legal claim of jus relictœ.

The said Hugh Mackenzie intromitted with and uplifted the whole personal estate (with the exception of a sum of about £34), including (1) a bond and disposition in security for £2000 over the estate of Millbank; (2) the rents of the estate of Dundonnell, payable at Martinmas 1845, and the rents of the lands and fishings acquired by his father from the family of Cromertie, and also the said jus relictœ due to his mother; and, after paying certain debts of the truster, and paying or setting apart the legacies and provisions bequeathed by the trust-deed, he appropriated the whole residue of the trust-estate, heritable and moveable, and applied the same for his own uses and purposes.

Mrs Mackenzie, on the decease of her husband, was entitled to one-third of the goods in communion in name of jus relictœ, but no payment was made to her during her lifetime, nor, since her death, to her children as her next of kin, and accordingly the present action was raised.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 24th January 1873.—The Lord Ordinary having heard the counsel for the parties, and considered the Closed Records in the conjoined actions, Finds that the late Murdo Mackenzie of Dundonnell died on 9th May 1845, survived by his wife, Mrs Christy or Christian Ross or Mackenzie, and by seven children of the marriage between them: finds that upon the dissolution of the said marriage one-third part of the goods then in communion between the said spouses vested in the said Mrs Christy or Christian Ross or Mackenzie as jus relictœ: Finds that Mrs Christy or Christian Ross or Mackenzie died in June 1856, survived by five of her said children, and that two of the said children predeceased her without issue: Finds that the claim now made for payment of the sum which vested in and belonged to the said Mrs Christy or Christian Ross or Mackenzie as jus relictœ;, and of the interest thereof since her husband's death, is not excluded or discharged by the trust-disposition and settlement of the said Murdo Mackenzie, dated 5th March 1844, or by payment to or acceptance by his children of the sums or legacies provided to them in said deed. And appoints the conjoined causes to be put to the roll with a view to further procedure.”

The defenders reclaimed, and pleaded, inter alia, (1) That the widow herself never made any claim for jus relictœ. (2) That the claim was excluded by lapse of time, or by mora, or by taciturnity on the part of the pursuers. (3) That the claim was excluded or discharged by payment to and acceptance by, the pursuers, of the legacies bequeathed them by their father. (4) That the whole of the free executry having been exhausted in payment of the truster's debts and bequests in accordance with the express provisions of the trust-disposition of 1844, and there being therefore no funds out of which the claim for jus relictœ could be paid, the claim must be held as excluded or discharged by the deed. (5) In the event of the claim being sustained, the defenders were entitled to take credit for sums spent in the maintenance of the widow by her son Hugh Mackenzie.

Authorities relied on by them— Hume v. Huntly, M. 2764; Robson v. Bywater, 8 Macph. 757; Pringle, 8 Macph. 622.

At advising—