Scottish Court of Session Decisions

Lord President, Lords Balgray, Gillies, Mackenzie, Corehouse, Jeffrey, and Cockburn.—The late Sir John Niebett and his lady having separated in 1810, a deed of agreement was executed by them on that occasion, to provide a maintenance or alimony to Lady Nisbett during the subsistence of the marriage, and an annuity for her life after its dissolution, in the event of the predecease of her husband. By that deed it was stipulated, that the real and personal estate which then belonged to Lady Nisbett, or to which she might afterwards succeed, should be left at her own disposal, and that Sir John should pay her £300 per annum from the date of the deed daring her life. It was provided, that if Sir John was sued for any farther sum in name of alimony or maintenance, he should be entitled to retain whatever sums he was thus compelled to pay, with the costs of suit, from the termly payments of the annuity as they should afterwards become due.

In 1821, Lady Nisbett did claim an additional sum in name of alimony in the Court of Equity in South Carolina, and obtained a decree for 3000 dollars per annum, including the annuity, no appearance having been made for Sir John. By this decree, Lady Nisbett's alimony was increased during the subsistence of the marriage; but no addition was made to the annuity settled upon her in the event of her surviving her husband.

Afterwards an agreement was entered into between the parties, by which Lady Nisbett accepted 20,000 dollars in one sum, in lieu of all her claims for alimony and arrears during the joint lives of herself and her husband; and, in terms of that agreement, on receiving payment of the stipulated sum, she granted a discharge of the decree, and in full satisfaction of all future alimony while the parties continued to live separately.

It appears, therefore, that the deed of agreement in 1810 consists of two parts —the one is a contract of separation, and the other a contract making a provision for Lady Nisbett in the event of her survivance. It is unnecessary to consider whether the contract of separation was revocable or not. The parties never afterwards cohabited; and Lady Nisbett sold her whole interest under the deed, in so far as it was a contract of separation, to her husband for a specific sum; which she accordingly received.

The question in this multiplepoinding is, what is Lady Nisbett entitled to in consequence of her husband's predecease?

She claims the jus relictæ and terce. To this it is objected by Sir John Nisbett's trustees, that, by the transaction in 1821, she discharged not only the sum stipulated as maintenance during the subsistence of the marriage, but all claims upon her husband's estate after his decease, in consideration of the 20,000 dollars which she received in one sum. We are of opinion, that there is no ground for this objection. Both the decree and the discharge are restricted in the most express terms to alimony, and have no relation whatever to the annuity of £300 provided to Lady Nisbett after her husband's decease.

2d, Next, it is said that Lady Nisbett, having accepted a life annuity of £300, is not now entitled to betake herself to her legal claims, particularly as she took benefit, to a certain extent, under the deed 1810, by drawing her yearly allowance for alimony for some time, and then transacting for the remainder. In so far as the deed 1810 was intended to regulate Lady Nisbett's interest after her husband's death, we are of opinion, that it always was, and is now, subject to revocation by Lady Nisbett, as a donatio inter virum et uxorem stante matrimonio, if she can show that it was an inadequate provision, reference being had to the state of her husband's circumstances at the date of the contract. We are of opinion, that it is proved, by the admissions in the Revised Case for the trustees, that it was an inadequate provision, and that Lady Nisbett is entitled to revoke, if she thinks it her interest to do so.

Further, we are of opinion, that her taking benefit under the agreement, as a contract of separation, will not bar her from revoking it, in so far as it relates to her rights after the dissolution of the marriage, the one provision for maintenance during the subsistence of the marriage having no connexion with the other, which was to take place at her husband's death. On this point, we think the case of Palmer v. Bonar a decisive precedent. The deed of separation in that case, as in this, provided an alimony during the separation, and made a settlement upon the lady in the event of her husband's predecease. She received the alimony during her husband's life: but the Court held that she might nevertheless have revoked, on the ground of donation, if the annuity after her husband's decease had been inadequate, which, however, in reference to his circumstances, they thought it was not.

We are of opinion, therefore, that Lady Nisbett, notwithstanding the contract 1810, is entitled to betake herself to her claims at law as a widow,

With regard to these claims, we think that Sir John Nisbett was not domiciled in Scotland at the period of his death, and therefore that the objection to Lady Nisbett's claim for the jus relictæ is well founded.

We are of opinion, that Lady Nisbett is entitled to a terce of the heritable estate in which her husband was infeft at the time of his death, with the exception, however, of superiorities and feu-duties, to which, by the law of Scotland, the terce does not extend. Lady Nisbett has argued, that there is no ground in equity for exempting feu-duties; that in the present state of society it is unreasonable to do so, because the practice of feuing has recently increased to a great extent, particularly in the neighbourhood of large towns; and farther, that, in the case of Lady Dunfermline, referred to as a precedent on the point, the Court were moved by the specialty, that the lady was otherwise amply provided. We do not think this argument conclusive. If the rule of law is clearly fixed, we cannot disregard it because we do not know the principle upon which it was first introduced, or because a change of circumstances has rendered it more inexpedient than it originally was. These are considerations for the legislature, but not for a Court of justice. It is true that in the case of Dunfermline it is stated in Durie's report that the lady had other provisions; but it is also stated, that, by the custom of Scotland, terce was never allowed out of feu-duties. Accordingly, although Lord Stair refers to the case of Dunfermline, he lays down the rule in absolute terms, without reference to the specialty; and in this he is followed by Lord Bankton and Mr Erakine. If the unanimous and unqualified opinion of these writers, contradicted by no other authority, and by no precedent, is disregarded, we do not think that any rule in the law of Scotland can be held as fixed. It also appears that a similar judgment had been pronounced Sit the case of Lamington.

In her original condescendence and claim, Lady Nisbett does not very distinctly demand that she shall have her option to betake herself either to the terce and jus relictæ, of to the annuity of £300 under the contract. But becoming sensible, that, if she failed in obtaining the jus relictæ and a terce of feu-duties, it might be for her interest to fall back upon her annuity, she does make the claim alternatively in her revised case. We think she is entitled to do so. She was not barred from claiming under the contract by the proceedings in the American Court; for these proceedings were no repudiation of the contract. The parties foresaw that an alimony of £300 might not be sufficient for Lady Nisbett, and therefore it was stipulated in the contract, that if she succeeded in obtaining a larger sum, by an action at law or otherwise, it should have the effect, not of annulling the contract, but of authorizing Sir John Nisbett to retain the sum so awarded, with the costs of suit, in paying the annuity as it should afterwards fall due.

On these grounds we are of opinion, that Lady Nisbett is entitled either to a terce of the estate in which her husband died infeft, exclusive of superiorities and feu-duties, or alternatively to an annuity of £300 during her life.

Lord Fullerton.—I concur in the preceding opinion, that the objection to Lady Nisbett's claim of jus relictæ is, in the circumstances of the case, well founded. I also concur in the opinion, that the terce does not extend to superiorities and feu-duties.

The only other question arising under the record is, Whether or not Lady Nisbett is now entitled to claim the terce? Upon this point too, I am inclined to agree in the result of that opinion.

The ground upon which the demand is objected to by the trustees, viz. that, by the transaction between Sir John and Lady Nisbett in 1821, she discharged not only all claims for alimony during the joint lives of the parties, but her whole claims against him and his representatives during her own life, seems to me untenable. I think it obvious, from the terms of the “deed of release,” then executed, as well as from the “supplemental order” of the American Court of the 9th April, 1821, referring prospectively to that release, that her discharge was limited to her claims for “alimony” during the “period of her separation,” as it is expressed in the deed of release, or “during the joint lives of complainant and defendant,” as it is expressed in the order of Court.

Holding this, then, to be clear, and considering that the deed of separation of 1810 is admitted by both parties to have contemplated and provided the payment of an annuity of £300 a-year, not merely during the joint lives of the parties, but during the lifetime of Lady Nisbett, there remains the question, How far this deed bars or affects in any way Lady Nisbett's claim of terce? I think that it does not. And I do not feel so much hesitation in answering the question, as in assigning the special ground on which that conclusion is arrived at. This difficulty arises from the legal proceedings resorted to by Lady Nisbett in America in 1813–1816, to obtain an increase of her alimony; from the different views which nifty be taken of the effect of those proceedings; and more especially, from the manner in which the parties, perhaps unavoidably, have argued the case.

It seems to me that there are only two lights in which those American proceedings can be considered. In the first place, they may be viewed as entirely extinguishing the agreement of the parties contained in the deed 1810 in all its particulars, including that relative to the annuity subsequent to the death of Sir John Nisbett; and as substituting for that agreement the obligation to pay the increased alimony during the joint lives of the parties, without any reference to her rights in the event of his predecease; Or, secondly, As leaving in force the deed 1810, and merely superinducing upon its provisions, the obligation to pay the increase of alimony during Sir John's life. Now, in the first view, viz. that of the American proceedings “sopiting and extinguishing” the deed 1810, during the lifetime of Sir John Nisbett, the claimant's right to terce is unanswerable; as in that View it is not barred, under the act 1681, by any deed of provision in her favour existing at his death. But, 2dly; And even adopting the other view, her right to claim the terce is not excluded; inasmuch as the deed 1810 does not appear to me to be, from its terms, exclusive of her right to resort to her legal claims;—was not so construed during the lifetime of the parties;—and, on the contrary, if held to have been accepted and acted on by Lady Nisbett at all, from the date of the American proceedings of 1813–1816, was clearly accepted, only under the proviso of her right to resort to her legal claims in the event of its being for her advantage to do so. It is clear that if, after the American proceedings 1813-1816, Lady Nisbett must still be considered as accepting, to a certain extent, the deed 1810, her acceptance of it was always under the condition necessarily implied in the decree which she had obtained in the American Court, that her legal claims for additional alimony were not barred. And if that was the case in regard to the part of the deed 1810 applicable to the joint lives of the parties, it seems impossible to apply a different rule to the right of annuity emerging under that deed, after Sir John Nisbett's death. It would be incongruous to infer Lady Nisbett's absolute acceptance of the annuity of £300 to the exclusion of her legal claims after Sir John's death, from the acceptance of the alimony during his life, combined as it was with the admitted fact, that the stipulated alimony was increased by an addition claimed by and awarded to her, on the single ground, that the deed left her legal claims during his life in full force.

In whatever light, then, the proceedings in America are viewed, in relation to the deed 1810, 1 think the claim of terce well founded. But I am the less disposed to give any definitive opinion upon the comparative merits of those views, because they may, in one event, by no means unlikely, affect the rights of parties in a matter of very considerable importance indeed, and which I do not think has as yet been fairly argued—I mean the right of the claimant, Lady Nisbett, to make an option between her right of terce and the annuity provided by the deed 1810. It is evident, and indeed the claimant does not disguise it, that if the Court shall consider the superiorities and feu-duties not to fall under the terce, it will be for her interest to hold by the annuity provided by the deed 1810. Accordingly, in some parts of her revised case, she seems to reserve to herself the right of making such option, if the Court shall come to that conclusion. Of the competency of that option, however, under the record as it stands, I have very great doubts indeed. Her condescendence and claim are expressly limited to her legal rights. There is no claim whatever for the annuity, even alternatively; and indeed the main branch of the argument in her case rests upon a proposition, absolutely exclusive of the claim of annuity, viz. that the deed 1810 was “sopited and extinguished.” She evidently maintains that as the true view; and although she does refer to the other, it is only hypothetically, for the purpose of supporting, through the medium of her option, her claim to terce. And it may be observed, that, on the other hand, the trustees lay down, as the foundation of their argument, that the proceedings in America left the deed 1810 in operation—a proposition which, though a relevant argument against her claim of terce, affords, as has been already mentioned, a ground in support of her claim of annuity. This course of argument on both sides was perhaps unavoidable, in consequence of its being still undecided whether the terce included feu-duties or not; and, consequently, which view of the deed 1810, and of the effect of the American proceedings, it was the interest of the parties respectively to maintain.

Whatever, then, may be the claimant's right to choose between the terce and the annuity, and to resort to the latter if it proves the most valuable, and however proper it may be, to allow a claim and plea of this nature to be added to the record, as fairly arising out of the facts of the case, I do not see how it can be determined on the present pleadings. It rather appears to me that this would be fair to neither party; as, in the first place, the trustees have not argued, and were not bound to argue it, under the present record; and, secondly, as the claimant, though alluding to it hypothetically, has truly argued the point properly raised in the record, on grounds subversive of any claim for the annuity.

In these circumstances, I cannot help thinking that the most equitable course would be, for the Court first to determine what the terce truly includes; and, in the event of that determination being unfavourable to the claimant on the subject of the feu-duties, to allow the record to be amended, and the parties to be further heard on any claim she may make for annuity, if so advised.

Lord Moncreiff.—The opinions of the consulted Judges are required on three questions;—1. Whether the claim of Lady Nisbett to her legal provision of terce, is altogether excluded by the terms of the contract of separation between her and Sir John Nisbett, in 1810, or by the proceedings in the American Court, and the transaction which followed on them in 1821?—2. Whether, supposing that a claim of terce is still competent to her, she can claim such terce of the feu-duties payable from the estate of Dean, and forming part of the estate descending to the heir at his death?—And, 3. Whether the claimant is entitled to jus relictæ?

1. On the first of these questions I am of opinion, That the claim of terce was not excluded by the contract of 1810, or by the subsequent proceedings and transaction.

The deed of 1810 is a deed of voluntary separation, proceeding simply on the narrative, that, on account of certain unhappy differences, the parties had agreed to live apart from each other, and that Sir John had agreed to pay to Lady Nisbett an annuity of £300, during her life, for her maintenance and support. He accordingly binds himself to permit her to live separately from him, and not to interfere with any separate funds which she had, or might acquire. The obligation for the annuity bears, that Sir John Nisbett “shall and will yearly and every year, during the natural life of the said Dame Maria Nisbett, well and truly pay,” &c. an annuity of £300, which is declared to be “for the sole and separate support and maintenance of the said Dame Maria Nisbett” and not to be subject to the debts or control of Sir John. So far, no doubt, the provision is apparently for the whole life of the lady. But that it was not intended or understood as a final settlement of her rights, even during the joint lives of the parties, and still less in the event of her surviving Sir John, appears to me to be clear, both from the nature of the contract itself, and from the express terms of the remaining clauses which it contains. For not only does the deed contain no discharge, either general or special, by Lady Nisbett, either to Sir John himself, or his heirs or executors, of any other claims competent to her, whether of greater aliment during their lives, or of terce, jus relictæ, or any thing else, after his death; but it goes on in express words to contemplate and provide for the case of her bringing a suit against him during their joint lives, “in order to compel him to pay and allow unto her, while she and the said Sir John Nisbett shall live separate and apart, any further or other sum or sums of money, for or by way of alimony or otherwise;” and the provision is, that all such sums, as well as any debts which might he made to affect Sir John, shall be deducted from the annuity of £300, “as far as the same will extend,” The import of this I take to be, that it was clearly understood that the lady might, notwithstanding the contract, bring a suit for a legal award of maintenance, and that in that case the annuity should cease, or suffer abatement, I cannot therefore think, that a contract which was so conceived could he intended, or can legally operate, as a final settlement of the rights of the parties after the dissolution of the marriage, there not being a word from the beginning to the end of it to indicate such an intention. The deed in this case appears to be a contract of separation, and nothing else: and therefore I cannot construe her assent to such an arrangement, which might be temporary, merely by subscribing the deed, without any obligation of discharge of any kind, as an acceptance of the annuity in lieu of all that she could ever claim.

I think that it is also very material, in regard to the actual intention and understanding of the parties, that, when Sir John subsequently came to execute his first settlement of 1813, and gave to Lady Nisbett a legacy of £2000, he did so under an express declaration, that it should not be payable “unless the said Dame Maria Nisbett shall agree to accept of the same in lull satisfaction of all claim for dower, or terce, and every other claim whatsoever, out of my estates, heritable and moveable,” &c. Sir John never could have made a provision in such terms, if he had then imagined that there was already a conclusive settlement of all the lady's claims upon his estates after his death, or, in particular, that the terce was already barred or discharged.

Supposing, therefore, that nothing mure had taken place, I could not have held that the contract of 1810 excluded the terce; and I am of opinion, that none of the cases which have been referred to, and to which I shall allude afterwards, afford any authority for holding that it did.

But the proceedings which followed in America appear to me to demonstrate that the contract of 1810 was known and understood to be only a temporary arrangement, and not to exclude even a demand for further aliment in Sir John's lifetime. In an action for alimony, in which the deed of separation, and the aliment thereby provided, were distinctly set forth in the record, decree for an alimony of 3000 dollars was pronounced; the Judge, though giving it without an answer having been filed, holding expressly, and upon consideration, that the deed did not bar the claim for alimony at law.

That decree contained an injunction against the sale of an estate in America; and, in order to get rid of that injunction, Sir John appears to have proposed, some time afterwards, to purchase up the alimony which had been awarded by the decree. Although that alimony of 3000 dollars of course comprehended, or rather sunk in the larger sum, the £300 of annuity, I apprehend that, after taking that decree, Lady Nisbett could only claim her aliment by virtue of it; and that if, in the subsequent transaction, she discharged what was thereby given, such discharge could not, from the nature of the thing, go beyond the judgment itself, which was for an alimony simply, clearly confined to the joint lives of the parties. Accordingly, the first order in the later proceedings, which is for dissolving the injunction, expressly bears narrative, that Lady Nisbett had agreed “to accept of a specific sum in lieu of all her claims for alimony, either now or during the joint lives of complainant and defendant.” The deed of release and indemnity which followed in like manner bears, that, in consideration of the sum of 20,000 dollars paid to her, Lady Nisbett discharged Sir John “of and from all maintenance and alimony whatsoever, and of and from all agreements and contracts for providing and securing the same, and also from all dues, reckonings,” &c. which she might claim “under or by virtue of the decree of the Court of Equity of South Carolina aforesaid;” and then it has this clause, “And also, of and from the payment of all alimony and maintenance whatsoever, which the said Maria Nisbett at any time hereafter may claim or demand during the continuance of their separation.”

I think that it appears from these proceedings and transaction, 1. That the contract of 1810 was not understood by either party, or held in law, to be a final settlement. 2. That the decree of the American Court, which was for an alimony simply, and which merged the annuity of £300 in that alimony, was by its nature and terms a provision of aliment only during the joint lives of the parties, and their continuing to live apart. 3. That the transaction by which this alimony was purchased for 20,000 dollars, could not operate as a discharge of any thing more than the alimony thereby given during the joint lives of the parties; and, 4. That by the express words, both of the first order, and of the last and broadest clause of discharge in the deed of release itself, the acceptance and discharge were specially so limited.

Being of opinion, therefore, that the terce was not discharged by the contract of 1810, I am also of opinion, that it was not discharged either by the decree of the American Court, or by the transaction which followed. And I also think, that by these later proceedings the provision in that deed was entirely superseded.

Having this opinion, I do not think it necessary to advert particularly to a different view taken by the claimant, on the supposition that the transaction in 1821 did not supersede or do away the effect of the contract 1810. But certainly, if it were to be held that the annuity provision of the deed 1810 was not totally put an end to in all its effects by the American decree and transaction, I should think it very difficult to dispute the proposition, that, in that case, the discharge, expressly limited to an alimony for the joint lives of the parties, could not be held as a discharge of the annuity of £300 after the death of Sir John Nisbett.

It may be proper that I should now shortly advert to some of the cases which have been referred to. The first case quoted by the respondents is Miller v. Brown, January 19, 1776. In that case, the contract between the parties, consisting of mutual deeds, contained an express clause of discharge, in the broadest terms, by the wife, of all right to any of the goods, gear, or other effects belonging to her husband, or to any aliment or other provision of the law competent to her as his wife, in the same manner as if they had never been married, &c. The wife revoked when the husband was at the point of death; and the Court found, that the clause was sufficient to import a discharge of the jus relictæ. If there had been any such clause in the present case, there could have been no doubt as to the intentions of the parties; and, if a question as to the revocability of the deed had arisen, it would have stood on a very different footing from any question on the facts as they are. Here the point is, that the deed contains no such discharge; and my opinion is, that from its own terms it appears, that it was not intended or understood to have any such effect.

The next case mentioned is that of Sutherland v. Syme, July 1, 1772. But there also there was a still stronger and broader clause, discharging the terce and every thing else; and therefore I do not think it necessary to advert more particularly to the circumstances, which are fully reported by Lord Hailes, and have been commented on by the parties. But I must observe, that the respondents, in quoting from the report, omit altogether the clause of discharge.

The case of Palmer v. Bonar, 25th January, 1810, is also referred to. The deed in that case was called a postnuptial contract, containing an agreement to live separate, and a provision of an annuity of £150. But it contained clauses expressly with reference to the event of the wife surviving the husband; and declared, that the annuity and the furniture of a house “shall be held in full satisfaction of all claims of moveables, terce of lands, or other claim,” &c.; and there was besides, in the counterpart of the contract, an express discharge by the wife to the same effect. No revocation of the deed took place in the life-time of the husband; and the question was simply, Whether, after his death, the wife could repudiate the express contract between them for settling the rights of the wife and the husband's representatives on that event. The Court held, though with difficulty, that the contract should be taken as consisting of two parts, the first an agreement to live separate, and the second a settlement mortis causa; and that though, as a contract of separation, it might be revocable in the husband's life time, yet, as a settlement of the rights of the parties, it could not be repudiated after his death. But it is to be observed, that, even upon such a deed, there was no decision as to what might have been the effect in regard to all its parts, if, during the joint lives of the parties, the wife had bona fide revoked the contract as a contract of separation, or had brought an action at law for aliment.

“Without at all impeaching the authority of that case, I humbly conceive that it has no application to the present case. I cannot find in the contract of 1810 any of the features which were in the contract in Bonar's case, and on which the Court decided. There is in fact no obligation by the wife at all, except an obligation to live separate from her husband. Far less is there any discharge of terce, jus relictæ, &c. The deed in this case cannot be divided into two parts. It is simply an agreement to live separate, with a provision of aliment. There is nothing like a settlement mortis causa by Sir John Nisbett, accepted of by the claimant; the words “during her natural life,” which occur in the clause granting the annuity, being clearly explained by the after clauses, to mean nothing more than her life, while Sir John lived also—their joint lives, or continuing to live separate. But at any rate I am satisfied, that, in this case, it was not at all the meaning of the parties to make any such settlement of their rights mortis causa finally and irrevocably.

II. The second question is, Whether, supposing the claimant to be entitled to her terce generally, she has a right to terce of the feu-duties payable from the estate of Dean, under the feu-contracts entered into by Sir John recently before his death?