Scottish Court of Session Decisions

The pursuer Mrs Thomson was married in 1818 to the late Abram Thomson, when an antenuptial contract was entered into, containing inter alia the following provisions:—1st, That Thomson should pay to Mrs Thomson, in case of her surviving him, a free yearly annuity of £100; 2d, That over and above this annuity she should be entitled to the liferent of the whole property which Thomson should acquire during the marriage; 3d, That he should provide the sum of £5000 to the child or children of the marriage; 4th, That Mrs Thomson should have right to the whole furniture, &c. belonging to her husband at the period of his death; 5th, That she should be allowed a certain sum for mourning, &c.; 6th, That in the event of her entering into a second marriage during the existence of issue of the present marriage, the value of the whole goods in communion and of the whole free estate belonging to Thomson, deducting 10 per cent for deterioration, should be divided in equal portions between her and her children by the marriage; 7th, That in case of no issue of the present marriage, Mrs Thomson's right, in the event of her entering into a second marriage, should be restricted to one half of the above provisions; 8th, That in consideration of these provisions, Mrs Thomson should convey to trustees, for behoof of herself and the children of the marriage, two sums of £500; it being farther provided that, in the event of there being no children, these sums, and any others to which she might succeed, should go to her own nearest of kin, and that Thomson's jus mariti over the same should be excluded.

In 1831, Mrs Thomson executed, along with her husband, a deed bearing to be a mutual trust-deed and deed of settlement, of which the following were the leading provisions:—The whole property belonging to both or either of the spouses as at the period of the husband's death was conveyed to trustees, 1st, For payment of debts; 2d, For payment of a life-annuity of £300 to Mrs Thomson, in the event of her survivance, and with directions to make over to her the whole furniture, &c. in her husband's possession at his death; 3d, It was declared that the said liferent provision was accepted by her in full of all her claims by law, or under her marriage-contract; 4th, It was farther declared that the liferent and other provisions now constituted in her favour should cease and determine on her entering into a second marriage, and that she should not be entitled to claim or receive any thing thereafter under the deed, or under her marriage contract; 5th, That in the event of Thomson predeceasing and leaving children, the whole residue of the estate should be divided amongst the children by equal portions; 6th, That in the event of his predeceasing without children, Mrs Thomson should have the whole free liferent of his property, so long as she remained a widow, under the condition that, on her death or second marriage, Thomson's property should be divided among his nearest heirs, while that which came to him through his wife should go to her heirs; 7th, Full power was reserved to Thomson, at any time of his life, without consent of his wife, to alter, innovate, or revoke this settlement either in whole or in part.

Mr Thomson died in 1836, leaving funds (which had greatly increased during the marriage) to the amount of upwards of £20,000. As it appeared that, under the mutual trust-settlement, the condition of Mrs Thomson would be much worse than under the marriage-contract, she executed a deed of revocation of the settlement, and thereafter raised action against the children of the marriage and the trustees under the settlement, to have the same reduced, on the ground, inter alia, that, assuming the settlement to have been validly executed, it was subject to be revoked by the pursuer as constituting a donatio inter virum et uxorem, and had been revoked accordingly.

In defence against the action, it was pleaded;—

1. The deed of settlement being an onerous mutual contract, cannot be set aside, either as in violation of the contract of marriage, or as a donatio inter virum et uxorem.

2. The mutual disposition and settlement being a rational and proper arrangement, in so far as regarded both the spouses and the children of the marriage, and there being no ground for stating that there is any excess on either part, it is incompetent to plead the law of revocation as applicable to such a case, it being at any rate impossible to restore both parties to the rights which they enjoyed at the date of executing the said deed.

3. The deed is not revocable, so far as third parties, viz. the children of the marriage, derive benefit therefrom; and the husband, as administrator-in-law for the children, was entitled to take from the wife a renunciation of his rights for behoof of the children. ¹

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1 Hamilton, Jan. 15, 1669 (M. 6107); Somerville, Feb. 2 and 3, 1688 (M. 6108 and 5990).

4. Even if the deed had been challengeable during Thomson's life as in violation of the contract of marriage, or revocable as a donatio inter virum et uxorem, the pursuer was not entitled to allow the deed to remain unchallenged during his lifetime, thereby holding him bound by the same, and preventing him from making any other settlement as to the residue of his estate; and then after his death to take advantage of the marriage-contract, her rights under which she had expressly renounced, and thus deprive him of the power of making a different settlement, on the footing that the marriage-contract should stand good.

For Mrs Thomson it was pleaded;—

Every deed by which the wife renounces any the smallest part of a provision to which she formerly had right, is a donation by her to her husband, and consequently revocable. ¹ That the deed under reduction is one to which the principle of the rule as to donations between husband and wife applies, is apparent by contrasting Mrs Thomson's rights as under the marriage-contract, with her rights as fixed by the deed; and the value of the husband's property is to be taken as at the time of his death. ²

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1 Erskine, I. 6, 30.

2 M'Neill v. Steel's Trustees, Dec. 8, 1829 (ante, VIII. 210).

The Lord Ordinary pronounced the following interlocutor, adding the note below: ^*—“Finds that the provisions accepted of by the pursuer, under the mutual trust-settlement libelled on, were, both in respect of amount, and of the conditions attached to the same, greatly inferior to, and otherwise more disadvantageous to the pursuer, than the provisions previously secured to her by the antenuptial contract of marriage between her and her husband: Finds that the said trust-deed was so framed as to

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* “The lesion or sacrifices exacted from the pursuer by the deed under reduction are of very unusual extent and amount, and such as a married woman must be protected against, according to all the authorities applicable to the present question.

“1st, By the contract of marriage, if the pursuer did not contract a second marriage, she would now be entitled to £540 per annum,

“And if she were now to marry again, though her jointure would cease, she would be entitled ‘to have paid and delivered over’ to her, under the marriage-contract, one-fourth part of the whole free estate of the defunct, deducting 10 per cent for deterioration. See extract contract of marriage produced, p. 9 and 10. The fourth share, in the present case, however, according to any reasonable calculation, appears to exceed £5000 sterling. Such a capital, it is supposed, would produce an annuity on Mrs Thomson's life greatly above £300.

“2d, By the trust-settlement under reduction, the pursuer was made to accept of a life annuity of £300 as the maximum of her provisions, even if she remained unmarried.

“But in case of her marrying again, even that provision is entirely taken away.

“Upon the application of the various authorities to the preceding state of the facts, the Lord Ordinary conceives that the pursuer's right to reduce the deed libelled on is clearly made out.”

put any provisions or benefits renounced by the pursuer entirely at the disposal of her husband, by the unlimited power of alteration reserved to him: Finds, in particular, that no additional provisions were irrevocably invested or settled for behoof of the children of the marriage by the trust-deed under reduction, their legal claims of succession not alterable by the husband being still left upon the stipulations in their favour in the marriage-contract: Therefore finds that the trust-deed libelled on was, on the part of the pursuer, a donatio inter uxorem et virum; and, as the pursuer has now revoked the same, reduces, decerns, and declares, in terms of the libel: Finds the pursuer entitled to her expenses from the defenders qua trustees.”

The trustees and children reclaimed.