Scottish Court of Session Decisions

In 1832, the late Alexander Reid, then a widower, and father, by his. former marriage, of the defender, Mrs Young, married the pursuer, Mrs Reid, then a widow, and mother of three children by her former husband, Thomas Ower. The parties executed an antenuptial contract of marriage mutually assigning and disponing to each other, in the event of survivance, the liferent of all the heritable and moveable estate which might belong to either of them at the dissolution of the marriage. The contract provided, inter alia, 1st, That, upon the death of either of the parties, an inventory of the whole estate should be made at the sight of certain trustees therein named; 2d, The event of there being issue of the marriage was provided for; 3d, “That failing children of the marriage, then the free estate on the death of the survivor, calculating the whole as moveable, whether heritable or not, shall divide in two parts,—one part to the children of the said Jean Gregor or Ower (pursuer), by her first marriage equally, and their heirs and assignees, and the other part to the said Jean Reid (defender), and her heirs and successors whomsoever, but excluding the jus mariti of the said James Young, her husband.” The word “shall” was used as the directing term in all the provisions of the deed.

Alexander Reid died in March, 1836, possessed of certain heritable property, of which he had executed no conveyance. There was no issue of this marriage. Thereafter Mrs Reid, and her children by her former marriage, founding on the contract above-mentioned, and claiming, the one, a liferent of the heritable and moveable estate of the deceased, and the others, in right of the third provision of the contract, one half of the heritable and moveable property as at Alexander Reid's death, payable to them at the death of their mother, raised action against Mrs Young, as heir and representative of her father, to have her ordained to make up titles to the heritable property, and to dispone and convey the same in liferent and fee to the pursuers according to their respective interests therein.

Mrs Reid's right to her liferent was not disputed, but in regard to the claim of the other pursuers it was pleaded in defence;—

1. The contract of marriage libelled does not vest any right in the pursuers, or impose any obligation upon the defender, quoad the fee of the heritable property in question. Even taking it as a general disposition, there are no proper dispositive words such as would be necessary to exclude the heir-at-law, the deed containing merely a declaration of intention, and giving no proper jus crediti as against the defender.

2. Supposing it competent now to enter upon the pursuers' claim quoad the moveable property and funds, the defender is entitled to claim out of these, to the exclusion of all the pursuers, her legal provisions, viz. a share of executry as next of kin of her late mother, and her legitim as the only child of her father.

The pursuers answered;—

1. The marriage-contract was an onerous deed, and under it a valid obligation was created, whereby the parties and their heirs are bound to implement its provisions as to the disposal of Reid's heritable as well as moveable estate.

2. The plea as to the defender's right to a share of the goods in communion at her mother's death, is irrelevant; and if relevant, it cannot affect the conclusions of the present action, in respect she is not entitled to any sum on that account.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Finds that the provisions in the contract of marriage

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^* “The defender founded, at one time, on the want of any proper disposition of the fee to the former family of the widow, and on the doctrine that the heir-at-law cannot be excluded by any thing short of a complete and effectual conveyance to some other person. She ultimately admitted, however, that if her father was under an onerous obligation to the pursuers, she, as his representative, was bound to fulfil it, and rested her case, at last, on the want of proper words of obligation in the provision relied on, and the incompetency of cutting off her legal right of succession by inference and construction. Her argument, in short, is, that because her father does not expressly bind and oblige himself and his heirs to make over the one half of the joint property to the pursuers, in the event which has happened, but only provides and declares, that in that event the said property ‘ shall divide into two parts,’ one of which shall go to the pursuers, and the other to the defender, this is only an intimation of intention, and gives no proper jus crediti, as against the defender.

“The wording of the deed is certainly loose and careless; but the Lord Ordinary thinks that, in a mutual onerous contract like this, the expressions actually used clearly import an obligation. The word shall is imperative as to other parties, and obligatory as to him who uses or adopts it, and in both cases is of binding effect, wherever there is legal power to bind in the parties who employ it. It is the common word used in Acts of Parliament to impose an obligation; and very frequently, in the same sense, in mutual contracts of the greatest importance. If, in a lease, for example, it is provided that, if a tenant is willing to build a house at his own expense, the landlord shall furnish the necessary timber, or that, if the tenant ploughs more than a certain number of acres, he shall pay a certain additional rent, could it ever be doubted that these words imported a valid obligation, and were just as actionable and effectual as if the parties had bound and obliged themselves, or provided that they should be bound?

“It is very remarkable, too, that throughout the whole structure and phraseology of this contract, this is the word that is uniformly and exclusively used to express obligation. The very first provision is, that at the death of either of the spouses, an inventory and valuation shall be made of the whole estate. Then it is provided, that if there shall be children of the marriage, they shall be entitled to two-thirds of the property, and the other third shall be divided into two parts, one to the pursuers and the other to the defender in the action. Next follows the provision for the case which has actually occurred, of there being no such children, viz., that, in that event, the whole property shall go equally between these two parties. Then it is declared, that if the surviving spouse shall marry again, he or she shall cease to have any management of the property to which the children of the deceaser are entitled by these presents, and that their shares shall immediately be paid over to them, at sight of the trustee. It is a separate ground for giving effect to those clearly obligatory provisions, that there is a regular appointment of trustees, ‘with full power to carry the intention of the parties, as above expressed, into full force and effect.’

“The defender also insinuated that the contract was to be considered as of a testamentary nature, and so incapable of affecting heritage; but nothing can be more untenable. It makes various provisions for what is to be done in the lifetime of the survivor; for example, that very important provision, that if the survivor shall marry again, the children of the deceasing spouse shall be entitled to immediate payment, and it contains a clause dispensing with the delivery, like other deeds inter vivos. But the truth is, that it is in no respect more testamentary than all marriage-contracts and settlements in marriage-contracts necessarily are; and accordingly, it was not seriously disputed, that if the parties had expressly bound and obliged themselves to make over what is now sought, the defender could not have refused implement.”

libelled between Alexander Reid and Jean Gregor (the pursuer) are sufficient, in the circumstances which have occurred, to give the pursuers of the name of Ower, the children of the said Jean Gregor by a former marriage, a right to one equal half of the whole property, heritable as well as moveable, belonging to either of the spouses at the death of the said Alexander Reid, subject only to the admitted liferent of the said Jean Gregor; and that the defender is bound forthwith to make up titles to the said heritable property, and to dispone and convey the same in fee and liferent to the said pursuers, as craved in the libel, all at the expense of the said pursuers; and repels the defences, and decerns against the defender to this extent accordingly; finds expenses due.”

Mrs Young reclaimed.