James Robertson, son of George Robertson deceased v. Elizabeth Robertson, otherwise M'Vean [1843] UKHL 2_Bell_87

UKHL

James Robertson, son of George Robertson deceased v. Elizabeth Robertson, otherwise M'Vean

[1843] UKHL 2_Bell_87

George Robertson , the father of the parties, had, by a first marriage, three sons, Andrew, James, and Thomas, and, by a second marriage, a son and daughter, George and Elizabeth. In 1801, he executed a trust-deed and settlement, whereby he disponed to trustees, (his son James being one of them,) his whole effects, upon trusts which were expressed in these terms:—

“Declaring hereby, that these presents are granted by me in trust, for use and behoof of Thomas Robertson, my second son, George Robertson, my youngest son, and Elizabeth Robertson, my daughter, equally and proportionally, (and failing any of the said George and Elizabeth Robertsons by death, before marriage or majority, the share of the deceasing party to fall and accresce to the survivor of the said George and Elizabeth, and failing of both of them by death, before marriage or majority, their share to fall to my two eldest sons equally, and to the survivor of them,) which deed of trust above written, and subjects thereby conveyed, I hereby burden with the payment of the sum of L.100 sterling to the said James Robertson, my eldest son, and that within three months from the time of my decease, with interest thereafter during the not-payment; and which sum of L.100 sterling, with the estate in Jamaica, to which I succeeded in right of James Robertson, deceased, my brother, and which I have conveyed over to the said James Robertson, my son, and with the farther sum of L.600 pound sterling, contained in an heritable bond, granted to me by John Cranston therein designed, in Eckford, portioner of Smailholm, of date the 8th day of June, 1797, to which the said James Robertson, my son, will succeed as my heir-at-law, (the said heritable bond, and sums therein contained, not being conveyed to my said trustee in the general conveyance above written,) I consider as the said James Robertson's share of my means and effects; and I farther burden the said trust-deed, and subjects thereby conveyed, with the payment of L.40 sterling to the said George and Elizabeth Robertsons, equally, upon their respectively arriving at majority or marriage, with interest from my decease; which L.40 was money left by the late Agnes Mather, my wife, their mother, and which I consider as their property, and also with the payment of all my lawful debts, death-bed and funeral charges; declaring the above provisions in favour of my children, to be in full contentation and satisfaction to them of all executry, legitim, portion-natural, bairns' part of gear, or others whatsoever, they or any of them can ask, claim, or demand of me, by and through my decease.”

In 1805, George Robertson, the father, died, leaving only his son James, and his daughter Elizabeth, surviving him, his second wife having also predeceased him.

In these circumstances, James brought au action of count and reckoning against the trustees of the settlement, and his sister Elizabeth, now Mrs M'Vean, in which, repudiating the settlement, he claimed the whole legitim fund.

In support of his claim James insisted that his father's moveable estate was subject to a bipartite division of legitim and dead's part. That as Mrs M'Vean claimed under the

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Mrs M'Vean answered, that if James pleaded her renunciation, he could not challenge fulfilment of the testamentary provision, which was the very condition with which the renunciation was qualified. But moreover, on principle, immediately on the death of the father, consideration of the legitim , as a gross fund, was at an end. The share of each child then vested ipso facto in him, and was descendible to his executors. The child might enforce or abandon the claim to his share. If he abandoned, that, without more—without a conveyance—would not give the right abandoned to the other children; all that it could do would be to leave the fund of the claim undisposed of, and as such, to go to the general disponee, or executor. In the present case, the obligation to renounce the legal claim being attached as a condition to the acceptance of the testamentary provision, the renunciation took effect only from the time of the acceptance, which was after the father's death; and as she was the father's general disponee, by the predecease of Thomas and George, she was entitled, as such, to the share of legitim , which, as a child, she would have taken, but for her acceptance of the testamentary provision. So that in any way, James could only be entitled to his own share of the legitim , or a fourth of their father's moveables, and that only upon condition of collating the heritage.

James also claimed the whole of the deads' part, as having been virtually renounced by Mrs M'Vean; but as the Court did not decide this branch of the case finally, it is not necessary to notice the arguments in support of this claim.

The Court, on the 16th January, 1813, pronounced the following interlocutor:—

“Upon the report of Lord Balgray, and having advised the informations for the parties, the Lords repel the claim of James Robertson to the entire fund of legitim ; as also repel, in hoc statu , his claim to any share or portion of the said fund; but reserve to him, if he shall see cause, to offer collation of the heritable estate, and other provisions received from his father, and to be heard before the Lord Ordinary on any claim he may have to one moiety of the fund of legitim , under provision of his collating as aforesaid: Find, that on the death of George Robertson, junior, the share of his father's means and effects, appointed for him by his father's trust-deed and settlement, did accrue and devolve to his sister, Elizabeth Robertson, and decern in the preference in the process of multiplepoinding accordingly: But with respect to the share of the said means and effects, appointed by the said settlement for the deceased Thomas Robertson, remit to the Lord Ordinary to hear parties farther on their respective claims to the same, and to do therein, and in the remaining points in the cause, as he shall see just.”