Scottish Court of Session Decisions

The late George Colebrooke of Crawfurd-Douglas, in Scotland, residing at Woodlands, in England, granted a heritable bond of annuity in favour of his wife, on 5th February, 1805. It narrated his purpose of granting “security for payment of a jointure or liferent annuity to Mrs Colebrooke,” in case of her survivance to be paid to her “during her life;” and therefore he bound himself to pay to her “a free annuity of £800 sterling yearly, without any deduction whatever, during all the days of her life, in case she shall survive me, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment thereof, being £400 sterling, at the first of these terms which shall arrive next after my death, for the half year immediately preceding that term, and so forth thereafter, termly and proportionally during her lifetime, with a fifth part more than each term's payment of liquidate penalty for each term's failure, in punctual payment thereof, and the legal interest of each term's annuity, from the day on which it falls due, until payment thereof.” Mr Colebrooke further bound himself to infeft his wife “in the said free annuity of £800 sterling yearly, during her life, in case she shall survive me, to be uplifted and taken at the aforesaid two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's uplifting thereof, being £400 sterling, at the first of these terms which shall arrive next after my death, for the half year immediately preceding, and so forth termly thereafter, during her lifetime, with a fifth part more than each term's annuity of liquidate penalty for each term's failure in punctual payment thereof, and the legal interest of each term's annuity, from the day on which it falls due, until payment.”

The deed contained procuratory to resign “all and whole the said free liferent annuity of £800 sterling yearly, to be uplifted and taken by my said wife, in case she shall survive me, at the terms, by the proportions, &c. before specified:”—“beginning the first term's uplifting of the said annuity at the first term of Whitsunday or Martinmas, which shall happen next after my decease, for the half year preceding, and so forth, half yearly thereafter at the said terms, during the lifetime of my said wife.”

The annuity was declared to be in satisfaction of all terce and jus relicæ, &c., “excepting only such allowances as I shall fix, or, failing thereof, such allowances as may be suitable for mournings, in case she survive me, and for her aliment from the day of my death until the first term of Whitsunday or Martinmas immediately following, when her first half-year's annuity will fall due.”

The precept of sasine in the deed directed infeftment to be given to his wife “of the aforesaid free annuity of £800 sterling yearly, during all the days of her life, after my death, to be uplifted and taken, the said annuity, at the terms, and by the proportions aforesaid,” &c.—“beginning the first term's uplifting of the said annuity at the first term of Whitsunday or Martinmas, which shall arrive next after my decease, for the half year immediately preceding that term, and so forth termly thereafter, during her lifetime.”

On 29th February, 1808, Mr Colobrooke executed a testament, by which he bequeathed £500, to be paid to his wife immediately after his decease, to defray family mournings, “and the expenses of housekeeping, and other incidental matters relative thereto, and for her own use, until she shall come into the receipt of the income herein-after provided for her.” He directed his executor to pay to his wife, “by four equal quarterly payments”—“a clear annuity or yearly sum of £1200, for and during the term of her natural life.” It was provided that the annuity secured on the Scottish estates should pro tanto impute in satisfaction of the £1200.

After Mr Colebrooke's death, which occurred in 1809, his widow married Mr Taaffe, and having got into debt, her creditors attached the Scottish annuity, by successive half-yearly arrestments, under the burden of an alimentary allowance to her, and repeated processes of multiple-poinding were raised and conjoined for the distribution of the surplus fund among the creditors. Mrs Taaffe died on 15th March, 1832, and a question arose between Sir James Gibson-Craig, Bart., and James Bridges, on the one hand, acting for the creditors of Mrs Taaffe, and Henry Thomas Colebrooke, as in right of the estate out of which the annuity had been payable, on the other, whether the creditors could claim a proportion of the annuity corresponding to the period which had elapsed from Martinmas 1831, when the last termly annuity was drawn, and the 15th of March, 1832, when the annuitant died. The creditors had previously used arrestments of the term's annuity which was current at her death.

Mr Colebrooke pleaded, that, as the annuity was secured on land, the same rule must be followed as in the case of a liferent of lands, in which case no part of the rents falling due at the term next after the liferenter's death would be due to the liferenter's representative. But, separately, even if the bond were merely personal, yet, by its express words, termly payments alone were made due, and not a course of current payment de die in diem. The words were that the annuity should be paid “at two terms in the year, Whitsunday and Martinmas, by equal portions.” A separate provision of £500 had been paid to Mrs Taaffe, chiefly for her maintenance until the first term of payment should arrive, which would have been unnecessary had the annuity run de die in diem; and interest was made to accrue on each term's annuity “from the day on which it falls due;” which words necessarily imported that there was a specific day when the whole term's annuity fell due. The whole tenor of the provision was in a similar strain.

The creditors pleaded, that, by the bond, Mr Colebrooke bound himself to pay the annuity to his widow “without any deduction whatever during all the days of her life.” It was impossible to fulfil this obligation, unless the annuity was to be paid for that part of her life which subsisted between Martinmas 1831 and the 15th of March, 1832. The provision ought, from its nature, to be most liberally construed, and was moreover of an alimentary nature, so as to be meant to be coeval with the life of the party. Besides, each term's payment was expressly declared to be for the term immediately preceding, and thus Mrs Taaffe had got no payment applicable to the period of her life, subsequent to Martinmas 1831, unless the creditors' claim was now sustained.

The Lord Ordinary ^* “repelled the claim” of Sir James Gibson-Craig and Mr Bridges, who reclaimed. Mr Colebrooke also reclaimed on the point of expenses, which the Lord Ordinary found not due.