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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant and Others (Griffith's Trustees) v. Griffiths [1912] ScotLR 486 (28 February 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0486.html Cite as: [1912] SLR 486, [1912] ScotLR 486 |
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Page: 486↓
A trustee in his settlement declared that the provisions in favour of his widow therein contained “shall be deemed and taken to be in full satisfaction of all terce of lands, jus relictæ or legal share of moveables, and any other right or claim competent to her through my decease.”
Held—following Buchanan v. Ferrier, February 14, 1822, 1 S. 299 (1st ed. 323)—that an allowance to the widow for mournings was not excluded by the clause quoted, and that she was entitled to such allowance in addition to her provisions under the settlement.
A Special Case was presented for the opinion and judgment of the Court by John Pattison Grant and others, trustees acting under the trust-disposition and settlement of the late Edward Griffiths, first parties, and Mrs Mary Jack or Griffiths, his widow, second party. In his trust-disposition and settlement the late Edward Griffiths, who died on 18th April 1910, made certain provisions in favour of his widow, the second party, and declared as follows “And I provide and declare that the foresaid provisions in favour of my said wife shall be deemed and taken to be in full satisfaction of all terce of lands, jus relictæ, or legal share of moveables, and any other right or claim competent to her through my decease.”
The first parties maintained that by her acceptance of the provisions of the trust-disposition and settlement in her favour the second party's claim for mournings was excluded by the terms of the trust-disposition and settlement, while the second party maintained that she was entitled to an allowance for mournings in addition to her provisions under the settlement.
The Case contained, inter alia, the following question of law.—“(6) Is the second party entitled to an allowance for mournings out of the trust estate in addition to
Page: 487↓
her provisions under the said trust-disposition and settlement?” Argued for the first parties—The claim for mournings was a provision given by the law to the widow out of the deceased's estate to enable her to appear decently at the funeral, and as such was part of her legal rights, and fell within the discharge operated by acceptance of the provisions under the settlement.
Argued for the second party—The claim for mournings was a privileged debt and part of the funeral expenses, and therefore was not excluded by such a clause as was here founded on— Buchanan v. Ferrier, February 14, 1822, 1 S. 299 (1st ed. 323)—Fraser, Husband and Wife, 2nd ed. pp. 967–8.
The Court answered the question of law in the affirmative.
Counsel for First Parties— Sandeman, K.C.— Hon. W. Watson. Agents— Macpherson & Mackay, S.S.C.
—Counsel for Second Party— Graham Stewart, K.C.— Cowan. Agents— R. R. Simpson & Lawson, W.S.
