Campbell's Trustees v Campbell's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 12 December 1949 |
| Date | 12 December 1949 |
| Docket Number | No. 9. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Strachan.
SuccessionLegal rightsJus relictProvision to window of alimentary liferent in full of legal rightsIntestacy quoad feeWidow's claim for jus relict from intestate estateClaim by widow's representatives after her deathPrescriptionNegative prescriptionDate from which prescription runsNon valens agereConveyancing (Scotland) Act, 1924 (14 and 15 Geo. V, cap. 27), sec. 17.
The Conveyancing (Scotland) Act, 1924, by sec. 17 (which reduces the negative prescription to twenty years), enacts that in reckoning the period of prescription no deduction shall be made on account of the years of minority or less age or of any period during which a person was "under legal disability."
A testator directed his trustees to hold the residue of his estate for his wife in liferent for her alimentary liferent use allenarly and for the children of the marriage in fee. He declared that the provisions in favour of his wife and children should be in full of all claims for legal rights, and that any of them claiming legal rights should forfeit all right under the settlement. The testator died without issue in 1901. He was survived by his wife, who enjoyed her alimentary liferent until her death in 1939. Her representatives then claimed jus relict out of his estate on the basis that the fee of the residue was not disposed of, contending on various grounds that the claim, although never put forward by the wife, had not prescribed, and maintaining in particular that during her enjoyment of the liferent and owing to that enjoyment she had been non valens agere cum effectu.
Held (1), approvingSanderson v. Lockhart-Mure, 1946 S. C. 298, that jus relict, like legitim, was a right which might be extinguished by the negative prescription; (2) that, in the normal case, the terminus a quo for the running of the prescription against a claim of jus relict was the date of the husband's death; (3) (Lord Keith reserving his opinion) that a plea on non valens agere was an equitable plea which was not excluded by sec. 17 of the Conveyancing (Scotland) Act, 1924; but (4) that, in the present case, the plea was not open seeing that the widow might during her lifetime have claimed jus relict on the principle of Naismith v. BoyesELR, (1899) 1 F. (H. L.) 79, [1899] A. C. 495; and accordingly (5) that, as she had not done so, her right had prescribed.
On the question of the extent of the widow's claim,
Opinions by the Lord President and Lord Carmont that, if the widow had claimed jus relict on her husband's death, she would have been entitled to payment of one half of his free moveable estate and also to an alimentary liferent of the residue as thereby diminished.
Opinion by the Lord Ordinary (Strachan) that, unless the widow had been prepared to forfeit her liferent, her rights on intestacy would only have become payable on her death.
Opinions reserved by Lord Russell and Lord Keith.
William Smith Campbell died on 16th January 1901, leaving a trust-disposition and settlement dated 17th January 1896, whereby, after providing (first) for payment of debts and expenses, (second) for a specific bequest of a gold watch, and (third) for his wife's liferent of his household furniture and plenishings, he directed (fourthly):"And with regard to the residue of my means and estate I direct my said trustees to hold and apply pay and convey the same to and for behoof of my said wife in the event of her surviving me in liferent for her alimentary liferent use allenarly and to and for behoof of any children that may be born of the marriage between my said wife and me equally among them in fee." There followed a clause of devolution in favour of issue of predeceasing children, and the settlement then proceeded (lastly):"In the event of my said wife predeceasing me and there being no children of our said marriage alive at the date of my own death or any issue of such children then I direct my trustees to pay and convey the residue of my means and estate to [a nephew, whom failing to other collateral relatives]." The settlement further provided:"Which provisions in favour of my said wife and children shall be in full to them of all claims for [legal rights] and in the event of any of them claiming their legal rights then the person and persons so claiming shall ipso factoforfeit all right under these presents."
The testator was survived by his wife, Mrs Elizabeth Laing or Campbell, who died on 25th November 1939, leaving a will dated 24th September 1935. There was no child of the marriage. Until her death the testator's widow enjoyed the liferent of his estate. She made no claim for jus relict
Questions having arisen as to the persons entitled to the residue (which consisted entirely of moveable estate), the testator's trustees brought an action of multiplepoinding and exoneration. Claims were lodged by (1) the trustees acting under Mrs Campbell's will, who contended that the residue had fallen into intestacy and that they were entitled to half thereof as jus relict; (2) the trustee acting under the will of the nephew mentioned in the last purpose of the settlement, who claimed that the residue had vested in the nephew a morte testoris; and (3) the heirs in mobilibus of the testator, who claimed the whole (or, alternatively, half) of the residue on the basis on intestacy.
On 10th December 1948, after a Procedure Roll discussion, the Lord Oridnary (Strachan) repelled the claim by the nephew's trustee andquoad ultra continued the cause.
At advising on 16th December 1949 (when Lord Russell's opinion was read, in his absence, by the Lord President),
LORD PRESIDENT (Cooper).I have found this case much more difficult than the Lord Ordinary evidently did, chiefly because of the far-reaching implications of certain of the arguments presented to us. the facts are simple. the testator died in 1901, survived by his widow who enjoyed under his trust-disposition and settlement (which was a universal settlement) an alimentary liferent of the residue of his estate until her death in 1939. The fee of the residue has been held to be undisposed of; and, as the Lord Ordinary's decision on this point has not been challenged, we must take it thatquod the fee of the residue the testator died intestate. The widow's representatives now claim jus relict, and the single question argued before us was whether this claim was excluded by the negative prescription. The Lord Ordinary held that it was.
Up to a point the position in law appears to me to be sufficiently plain. A claim to jus relict or legitim belongs to the class of rights which may be extinguished by the negative prescription. this is implicit in the opinions in Mackenzie v. Mackenzie's TrusteesUNK,25 and the point was expressly so decided by Lord Patrick as regards legitim in Sanderson v. Lockhart-MureSC,26 a decision with which I respectfully agree. Now that the period of prescription has been reduced from forty to twenty years by the Conveyancing (Scotland) Act, 1924,27section 17, it may not be amiss to underline the warning that claims to legal rights may be lost in this way.
Next it is sufficiently plain that the normal terminus a quofor the running of the negative prescription against claims of legal rights is the date of death of the deceased. I say nothing of the specialties which may arise where a claim to legal rights is made in a case of supervening intestacy first emerging some time after the death of the deceased in consequence of subsequent unforeseen events; and I reserve my opinion with regard to the conflict of decisions referred to in Lindsay's Trustees28 in relation to one common type of supervening intestacy, viz., that which may arise when accumulations of income are forbidden by the Thellusson Act.29 In the simple case, of which this is an example, where the intestacy is an initial intestacy, the terminus a quo must in my view be the death of the deceased, for the right to jus relict and legitim vests on survivance.
It follows that in the present case a claim by the widow herself (or by her representatives as coming in her place), not made until after
the expiry of the prescriptive period, must fail, unless prescription is excluded by the fact that from 1901 to 1939 the widow was in the enjoyment of an alimentary liferent of the fund to the fee of one half of which her claim to jus relict, if made, would have applied. The argument for the widow's representatives on this point was put in the proposition that, so long as she enjoyed the alimentary liferent, she was non valens agere cum effectu, and therefore that prescription could not run against herFounding upon a number of early decisions and statements in the institutional writers, and particularly upon Bell's Principles, section 627, Mr wilson for the next of kin felt constrained to concede that this argument would have been unanswerable but for the terms of section 17 of the Act of 1924.30 For the moment I shall accept the concession in order to examine the statute. After reducing the period from forty to twenty years, the section proceeds to enact that "in reckoning the period of prescription as amended by this section, no deduction or allowance shall be made on account of the years of minority or less age of those against whom the prescription is used and objected or of any period during which any person against whom the prescription is used and objected was under legal disability." In this excluding from deduction the "years of minority or less age," the Act of 1924 is in terms repealing an express proviso of the Act 1617, cap. 12. But what is meant by a person "under legal disability"?
But the older law did not end there. The plea of non valens agere, which initially and properly was concerned with the personal capacity of the person against whom prescription was pleaded, assumed the new form of non valens agere cum effectu, and the emphasis was shifted to the last two...
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