Scottish Court of Session Decisions

Lord President.—[After narrating the facts and reading the terms of the mutual settlement]—It is, of course, quite settled that mutual settlements like the one which I have just read are really testamentary and nothing else, and no one has argued to the contrary. Accordingly, after the husband's death, the wife took, not in respect of his mutual settlement, but in respect of his will, and she being dead and the estate having been in bonis of her, the natural result would be that it goes to her executors. But an argument was presented to us that the old mutual settlement acted, so to speak, as her will, and that by that mutual settlement she had disposed of all estate of which she might die possessed in favour of her husband and his heirs, executors, and assignees whomsoever; and that the husband being dead, the husband's heirs and executors came in as conditional institutes.

I do not think I need say more than that, in my opinion, the question is absolutely disposed of by the case of Baillie's Executor v. Baillie, and unless we are prepared to overrule that case—which we cannot do—I do not think we could decide otherwise. And I am bound to say that, although there is upon the authorities, and especially upon the older authorities, some difference, it seems to me that the rule in Baillie's case is most consonant with common sense. An old couple like this, leaving mutual fortunes to each other, do it entirely out of what the settlement says, viz., “mutual love and affection to each other,” and they really do not think of each other's heirs at all.

The only other point was this, whether there was a right in the widow of the husband's brother, Alexander Garden, to get £50? I think there is no such right. It is quite possible to constitute a precatory trust which is binding upon an executor; but if estate is left to a person not as an executor but as a beneficiary, then it must be left with a clearly expressed condition in order to bind him.

Accordingly I propose that we should answer the first question in the affirmative and the second and third questions in the negative.

Lord Johnston concurred.

The Lord President intimated that Lord Skerrington, who was absent at advising, also concurred.

Lord Kinnear and Lord Mackenzie were present when the case was advised.