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Cite as: [1835] CA 13_318

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SCOTTISH_Shaw_Court_of_Session

Page: 318↓

Falconer's Trustees

v.

Strachan No. 103.

Court of Session

1st Division

Jan. 27 1835

Ld. Fullerton, Lord Gillies, Lord Mackenzie, Lord President, Lord Balgray.

Andrew Jameson and Others (Falconer's Trustees), Raisers and Claimants.— D. F. Hope— Anderson. Mrs Strachan and her Children, Claimants.— Cuninghame— Sandford. William Beilby, Claimant.— Marshall.

Subject_Provisions to Wives and Children—Clause—Fee and Liferent.—

Terms of an antenuptial contract, under which it was held, that a certain portion of a trust-estate, belonging to the wife, fell under the husband's power and administration, and was affectable by his debts and deeds, notwithstanding a provision to the surviving spouse in liferent only, and to children nascituri in fee—the provision applying only to such estate as should belong to the spouses at the dissolution of the marriages, and be then at their disposal.

Miss May Jackes, daughter of George Jackes, surgeon, was entitled to a share in the residue of the trust-estate of the deceased Mrs Falconer. At the marriage of Miss Jackes with Ralph Strachan, distiller, Kirkaldy, the following antenuptial contract was entered into, and Falconer's trustees were parties to it:—“It is hereby conditioned and agreed upon, that, with the exception of the one-half of Miss Jackes' fortune, as after mentioned, the whole fortune which may belong to the said parties, or to either of them, and at their disposal at the dissolution of the marriage, by the death of either of them, whether conquest and acquired during the standing of the marriage, or from whatever source the same may have arisen, shall be divided into two just and equal shares, and the one just and equal half thereof shall pertain and belong to the surviving party, and his or her heirs, with liberty to dispose thereof as he or she may think proper; and the other just and equal half thereof shall pertain and belong to the survivor in liferent, but for his or her liferent use only, under the burden and provision after mentioned, and to the child or children of the marriage, equally among them in fee, whom failing, to the heirs and assignees whomsoever of the predeceasing husband or wife, but declaring that the surviving party shall be bound to maintain, clothe, and educate the said child or children in a proper and suitable manner becoming their station, until they shall respectively arrive at the age of majority; and, for these purposes, the said Ralph Strachan and May Jackes do hereby mutually and reciprocally, under the provision after mentioned, give, grant, assign, and dispone, each of them to the other, in case of his or her survivancy, and to his or her heirs and assignees whomsoever, the just and equal half of all and sundry lands, heritages, houses, tenements, and other heritable subjects, and of all goods, gear, debts, and sums of money, or other moveable estate whatever, pertaining and belonging, or due and addebted, or that shall pertain and belong, or be due and addebted to them, or either of them, and at their disposal at the dissolution of the marriage by the death of any one of them, with full power and liberty to the survivor to use and dispose thereof at pleasure; and for that effect they hereby dispone, assign, and make over to each other, all the writs and evidents of the said heritable subjects, and all bonds, bills, and other documents and instructions of the said moveable subjects: And, in like manner, the said parties do hereby mutually and reciprocally give, grant, assign, and dispone, each of them to the other, in case of his or her survivancy, in liferent, for his or her liferent use only, under the burden and provision after mentioned, and to the child or children of the marriage, equally among them in fee; whom failing, to the heirs and assignees whomsoever of the predeceasing husband or wife, the other just and equal half of the said whole lands and other heritages, and half of the whole goods, gear, and other moveables, which shall pertain and belong, or be due and addebted to them, or either of them, and at their disposal at the dissolution of the marriage, in manner before written; but declaring always, that the surviving party shall be bound to maintain, clothe, and educate the said child or children in a proper and suitable manner becoming their station, until they shall respectively arrive at the age of majority.”

A declaration was added, that, out of the one half of said estate, the surviving spouse should be bound to pay a proportional share to any child, reaching majority, and should thereafter be free of all obligation to aliment that child. The deed then set forth, that Miss Jackes was entitled to a share of the residuary trust-estate of Mrs Falconer, which, however, was not due to her until she was 25 years of age, nor payable until she reached 30:—“And whereas it is the intention of the contracting parties, that, notwithstanding of the general conveyance above mentioned, the one-half of the fortune to which she shall be entitled in virtue of the said trust-settlement, shall be secured to her and the children of the present marriage; whom failing, to her own nearest heirs and assignees whomsoever: Therefore it is hereby conditioned and agreed upon, that as soon, and whenever, any part of the estate, or funds and effects of the said deceased Mrs Falconer, shall become due and payable to the said Miss Jackes, the just and equal half thereof shall be laid out by her trustees upon good and sufficient securities for behoof of the said Miss Jackes in liferent, and the children of the present marriage, equally among in fee; whom failing, to her own nearest heirs and assignees whomsoever: Declaring always, that no part of the said just and equal half of the fortune to which the said Miss Jackes shall be entitled to succeed in virtue of the said trust-deed and settlement, shall be affectable by the debts or deeds of the said Ralph Strachan, her intended husband, or of his heirs and successors: But that, nevertheless, he shall, in the event of his survivancy, and that there are no children of this marriage existing at the dissolution thereof, be entitled to the liferent use of the interest thereof during all the days of his life: But in the event of there being a child or children alive at the dissolution of this marriage, by the predecease of either party, the whole half of the said funds shall fall and belong to the said child or children equally, share and share alike.”

The share of the trust-estate falling to Mrs Jackes or Strachan amounted to about £10,000. She reached the age of 25 in February, 1826, and the trustee invested one-half of the above sum on securities, payable to them for Mrs Strachan in liferent, and for her children in fee. The trustees were empowered, under Mrs Falconer's deed, “to advance any sums of money to account which they may deem proper,” for farthering the views of any of the parties entitled to a share, and reaching the age of 25. They made advances to the amount of nearly £5000 for behoof of Mr and Mrs Strachan, and received obligations, partly from both spouses jointly, together with a right to an assignation to Mrs Strachan's share of the trust-estate, and partly from Mr Strachan alone. Strachan having become bankrupt, the trustees raised a process of multiplepoinding, for the purpose of determining the right of the respective parties in the fund in medio, consisting of Mrs Strachan's share of the trust-estate. Children had been born of the marriage, and appearance was made for them in the competition, as well as for a trustee under the marriage-contract, who had been named to enforce implement of it. Appearance was also made for William Beilby of Trinity-House, Hull, a party holding a bond for £2000 from Mr and Mrs Strachan, together with an assignation to her share of the trust-estate, which had been intimated to the trustees prior to the date of the greater part of their advances.

The trustees pleaded, that, as to one-half of the trust-estate, the jus mariti of Mr Strachan was not excluded by the marriage-contract. That portion of it, therefore, passed to him, jure mariti, and it was affectable for all his obligations. From the nature of the contract, which imported a conveyance of it, massed along with all the conquest realized during marriage, it belonged to an estate oyer which the husband's power of administration was unlimited during marriage; and no effectual limitation was imposed by there being a destination of half of what remained at the dissolution of the marriage to children nasituri in fee. The truster had imposed no obligation on the trustees to hold for behoof of any party but Mrs Strachan; and the marriage-contract was ineffectual to limit the right of her husband.

Beilby, the holder of the bond for £2000, maintained the same pleas, with the addition, that, as his right was complete by intimation before the chief part of the advances made by the trustees, it should be preferred to theirs, according to its date.

Mrs Strachan and her children pleaded, that a marriage-contract should receive a liberal interpretation towards effectuating the intentions of the parties; that this was truly a question of intention, and the object was to secure the fee of one-half of the estate, including the half share of Mr Strachan's portion of the trust, to the children nascituri; and, as this had been plainly expressed, it ought to receive effect, especially as it was a trust-estate which was thus provided. In the recent case of Rollo, ¹ a similar provision in a marriage-contract was sustained to that effect.

The Lord Ordinary pronounced this interlocutor:—“Finds that, by the marriage-contract entered into between the said Mrs Jackes and her husband, in September, 1821, to which Mrs Falconer's trustees were parties, it was conditioned, that, with the exception of the one-half of Miss Jackes’ fortune falling to her under the foresaid trust-deed, ‘the whole fortune which might belong to the said Miss Jackes and Ralph Strachan, or either of them, and be at their disposal at the dissolution of the said marriage, by the death of either of them, whether conquest or otherwise, should be divided into two just and equal shares, and the one just and equal half thereof should pertain and belong to the surviving party, and his or her heirs, with liberty to dispose thereof as he or she might think proper; and the other just and equal half thereof should belong to the survivor in liferent, but for his or her liferent use only, under the burden and provision after mentioned, and to the child or children of the marriage, equally among them in fee:' Finds that, in implement of these conditions, the parties reciprocally disponed one-half of all the property, heritable and moveable, which should pertain and belong to them, or either of them, at the dissolution of the marriage, ‘each of them to the other, in case of his or her survivancy, and to his or her heirs or assignees whomsoever;' and the other half of the whole property so belonging to them at the dissolution of the marriage, they disponed each of them to the other, in case of his or her survivancy, in liferent, for his or her liferent use only, and to the child or children of the marriage, equally among them in fee: Finds that, with the exception above mentioned of

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¹ Nov. 28, 1832 (ante, XI. 132).

one-half of Miss Jackes' fortune, no part of the estate and effects belonging to the contracting parties was, by the foresaid provisions of the marriage-contract, placed beyond the reach of their administration, or protected from the operation of their onerous debts and deeds during the existence of the marriage, and to that extent sustains the pleas of the pursuers, and decerns. But in respect the parties differ as to the meaning of the above-mentioned exception of the one-half of the fortune belonging to Miss Jackes, appoints the case to be enrolled, that parties may be heard upon the disposal of that and the other points in the cause.” ^*

The Lord Ordinary also, by a separate interlocutor, preferred William Beilby, the creditor, in virtue of his intimated assignation, to the extent of the bond and interest, and expenses.

Mrs Strachan and her children reclaimed.

Lord Gillies.—I think the interlocutors are well founded. The case of Hollo is not a precedent to this. Laying aside the one-half of Mrs Strachan's interest in the trust, about which there is no question before the Court, the reciprocal conveyance of the spouses was of the whole effects of both, which should be at their disposal at the dissolution of the marriage, including the conquest made during marriage. Whatever might be the amount of such estate, at that period, it was prospectively”providcd, that there should be a division of it into two halves, and one of these was destined to the survivor in liferent, and the children nascituri in fee. But during the marriage, the whole of this estate was under the administration of the husband; his jus mariti was not excluded from any part of it. Indeed, it would be incongruous to hold that his administration could be excluded

_________________ Footnote _________________

^* “ Note—It was provided by the marriage-contract, that one-half of the for tune falling to Mrs Strachan by Mrs Falconer's trust–deed, should be secured to her in liferent, and to the children of the marriage in fee, by being paid over, so soon as it became due, to certain trustees for that purpose. That matter is not at present the subject of discussion. The whole remaining fortune of the spouses, at the dissolution of the marriage, whether belonging to them at the date, or acquired by them during the standing of the marriage, was divided into halves; the one-half being disponed to the survivor, and his or her heirs or assignees, and the other to the survivor in liferent, for his or her liferent use allenarly, and the children of the marriage in fee. On the first half there can be no doubt; and even in regard to the second, there being a mere conveyance to the children nascituris of the fee of the property and effects belonging to the married parties at the dissolution of the marriage, it could not, in the opinion of the Lord Ordinary, affect or restrain the administration of the spouses during the existence of the marriage. He therefore thinks that the trustees are entitled to take credit for all the sums paid by them to Mr Strachan, whose jus mariti was not excluded, in so far as those payments are consistent with the limits arising from the exception above mentioned. The question as to the true meaning and extent of the exception does not seem to be properly raised under this record; and, on the application of the parties, the Lord Ordinary reserves it for further discussion.”

from that which should be conquest during the marriage by his own industry. But the whole mass of the devisable estate is placed on the same footing; and there is nothing to separate the unexcepted half of Mrs Strachan's share of the trust-estate from going along with the rest. The whole fell under the power and administration of the husband during the marriage.

Lord Mackenzie.—I take the same view. Both the introductory part of the dispositive clause, explaining narrative, the objects of the parties, and the sub-stantive part of the dispositive clause, conveying the estate and effects, expressly import a disposition of the whole goods and estate, as they shall belong to the spouses, and be at their disposal at the dissolution of the marriage, and “in case of his or her survivancy.” The period at which the disposition was to become operative was the dissolution of the marriage, and not before. Were it otherwise, the effect of it would be to lock up the whole funds of every sort, during the marriage, and contrary to the rational meaning of the parties. The case of Ramsay was totally different from this.

Lord President.—I think the interlocutor right. There is no exclusion

of the jus mariti, and an express exclusion would have been required. It is true, that, in the case of survivancy, there is but a liferent of one-half of the estate conveyed to the survivor; but of what estate is it that the survivor's interest is thus limited? Only of the half of that estate which should belong to the spouses, and be at their disposal at the dissolution of the marriage. During the marriage, the power and administration of the husband was not cut off as to this estate.

Lord Balgray concurred with the other Judges.

The Court adhered to both interlocutors.

Solicitors: A. Mony Penny, W.S.— J. B. Watt— J. Gibson, W.S.—Agents.

SS 13 SS 318 1835