The next question is, whether the share is one-third or one-fourth. The testator's eldest son John took the heritage of his father as his residuary legatee. He did not offer to collate the heritage and claim a share of the general estate, but retained the heritage and enjoyed the proceeds of it till his death. The question is, whether his trustees are now entitled to claim to share in the legitim fund. I am of opinion that they cannot. By taking the heritage as he did, and by selling part of it, John M'Call must be held to have discharged any rights he might have by claim at law against the rest of his father's estate, whether he took the heritage as heir or took it under his father's gift of residue in the settlement. The division of shares of the legitim fund must therefore be into a number exclusive of him.
I would propose, therefore, to answer the first question in the affirmative; the second question—that William M'Call is entitled to share in the legitim fund to the extent of one-third; find it unnecessary to answer the third question, and answer the fourth question by finding that the second party is entitled to interest on his ward's share, but only at such rate as the estate in the hands of the trustees has been yielding.
Lord Young concurred.
Lord Trayner —The right of a curator bonis to elect, as on behalf of his ward, between the legal and conventional rights of the ward in his father's succession, cannot be regarded as an absolute right, but only one which he may exercise in certain circumstances. In judging whether that right is to be exercised at all, it appears to me that the interest of the ward is chiefly to be considered. In the present case I am of opinion that the curator bonis of William M'Call is entitled to make this election, and I come to that conclusion upon the following considerations:—( First ) The ward has laboured under his mental incapacity since the date of his father's death in 1882, and the father's will indicates that the ward was even then (that is, in 1880) in the same condition mentally. This lengthened period of incapacity indicates pretty clearly what indeed was stated at the bar, that the ward in all probability will never recover from his present condition. He will therefore never be in a position to exercise such a right of election himself. ( Second ) The conventional provision, namely, £100 a—year, or “such lesser sum” as might be produced by the investment of £2000, is certainly not more than sufficient for the comfortable maintenance of the ward. Much less is the sum of £46 a-year, which is all that is yielded by that part of the trust fund which has been set aside to meet the provision for William M'Call. ( Third ) In any view which may be taken of the amount to which the ward has right as legitim, it exceeds £3000, the income of which at 3 1 2 per cent. would not be much more that £100 a-year, and therefore, as I have said, not more than what is a reasonable sum to expend on the ward's maintenance. ( Fourth ) The amount payable under the conventional provision being so much less than that which would be yielded by a share of the legitim fund, and the amount which would be yielded by a share of the legitim fund not being in excess of what is needed for the ward's comfortable maintenance, it is obviously in the interest of the ward that the curator should make the election. I am therefore of opinion, as I have said, that he may and can competently do so.
The next question is, what is the amount of the legitim fund? The truster left both heritable and moveable property, and was survived by four children. The eldest son took under the truster's direction the heritable property, but as he was heir thereto alioquin successurus he could not have claimed any part of the moveable estate without collation. He took possession of the heritage and disposed of part of it by sale. He never proposed to collate, and he (or rather his representatives, for he is dead) is not in a position now to do so, having parted with a portion of the heritage. The legitim fund, therefore, belongs to the three other children of the truster, and the curator bonis in right of his ward is entitled to one-third of that fund. The fund so due to the ward, being a debt due to him by his father's estate, will bear interest, but I think the rate of interest should not exceed that which the first parties were receiving on the trust funds they were administering. In ascertaining the amount due to the curator both as principal and interest account will, of course, be taken of the periodical payments which have already been made to or for behoof of the ward.
Lord Moncreiff The first question is, whether the Court in its discretion should authorise the curator on behalf of his ward to claim legitim. The necessity for an increase of the ward's income is clearly made out, because it has sunk from £100 a-year, the sum contemplated by the truster, to £46 a-year, and there can be no doubt that if the ward were to recover his sanity he would certainly elect to claim legitim which
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The most plausible objection on behalf of the third parties was that they were prepared to make up the ward's annual income to £100 a-year, and that therefore there was no necessity for election. But I do not think that either the curator or the Court is bound to entertain such an alternative. If the provision under the will is insufficient for the ward's maintenance, the proper alternative is that the curator should elect to claim legitim on behalf of the ward.
The next question is, whether the legitim fund falls to be divided by four or by three. The third parties, representing the heir, maintain that they are to be considered as entitled to a share of the legitim. It might be a sufficient answer that even now the third parties have not reprobated the settlement and elected to collate. But I think it is sufficient that John M'Call junior, who was sui juris , and indeed managed the whole estate, sufficiently made his election to take under the will by selling part of the heritage and transacting with those of the children who accepted provisions under the will.
It is true that no claim for legitim was made during his lifetime by the younger children, but the heir must be held to have known that it was still open to the ward or his curator to do so.
On the question of interest, I do not think that more should be allowed than the trust funds yielded—probably 3 per cent. would be sufficient.
The Court answered the first question in the affirmative, found in answer to the second question that William M'Call was entitled to share in the legitim fund to the extent of one-third, found it unnecessary to answer the third question, and found in answer to the fourth question that the second party was entitled to interest on his ward's share, but only at such rate as the estate in the hands of the trustee had been yielding.
Counsel for the First and Third Parties— C. D. Murray. Agent— F. J. Martin, W.S.
Counsel for the Second Parties— A. O. M. Mackenzie. Agents— J. & J. Ross, W.S.