GEORGE YOUNG Tertius, Petitioner, v EBENEZER WATSON, (Young's Trustee) Respondent (Court of Session)

The petitioner presented a complaint against the respondent, the trustee on his father's sequestrated estate, in respect he had rejected a claim preferred by him upon said estate, for a certain sum which had been uplifted and intromitted with by his father after his mother's death, being part of the estate of his mother, to which she had succeeded through her uncle, Mr Rodger, and from which, he contended, his father's power of administration had been excluded by his contract of marriage.

The Lord Ordinary found, ‘that the trustee has not done wrong in rejecting the claim of the petitioner; therefore dismisses the complaint, but finds no expenses due.’

The Lord Ordinary has not given expenses, however, because it was not unreasonable in the petitioner to take the opinion of the Court on this rather peculiarly constructed deed.’

The petitioner reclaimed ; and while he admitted that the deed had been awkwardly worded, he contended, that its import plainly was to vest the fee of this succession in the children of the marriage, and to exclude the husband's right of administration.

Although Mrs Young might, in virtue of the clause excluding the jus mariti, have claimed during her lifetime the interest on her uncle's funds as it fell due, yet her death has withdrawn this restraint on the husband's power of administration; and there is no stipulation in the contract, nor any principle at common law, in virtue of which the children can claim that the privilege of this clause shall be transferred to them, seeing that there was no effectual conveyance of the fee in favour of the children of the marriage.