Scottish Court of Session Decisions

In 1832, James Cousin, merchant in Glasgow, married Miss Elizabeth Morton, daughter of John Morton, portioner in Brownfield. An antenuptial contract was executed between the parties. In August, 1833, the spouses executed a minute of alteration of that contract, and a mutual trust-disposition to certain parties for carrying into effect the rights created under that trust disposition. The deed reserved power to alter, “but with mutual consent only.” Mrs Cousin or Morton afterwards executed a deed, in virtue of powers under that trust-disposition, conveying to various parties the share of property which, she had a power to settle, in the event of her leaving no children. She died in January, 1835, without leaving issue.

James Cousin afterwards executed a revocation of the minute of alteration, and relative trust-disposition of 1833, and raised a reduction of them, as being in substance a donatio inter virum et uxorem, and, therefore, revocable by the donor, even after the death of the donee, and without regard to any interest which the donee, the wife, might have attempted to create in favour of third parties as her legatees. The action also concluded for declarator that the rights of the parties must be regulated by the antenuptial contract.

Defences were lodged, a record was made up, and cases were prepared, in which the parties were not at issue as to the general principles applicable to the case, as laid down in Jardine, ¹ and Hepburn, ² and other cases; but they were at issue as to the true construction of the antenuptial contract. According to the pursuer's construction of the rights thereby created, the subsequent deed amounted in substance to an excessive and unreasonable donation.

The Lord Ordinary held that this plea of the pursuers was well founded, and his Lordship accordingly found “that the mutual disposition

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¹ Pursuer's Authorities.—MacNeill, Dec. 8, 1829 (ante, VIII. 210)—Jardine, June, 17, 1830 (ante, VIII. 937).

² Defender's Authorities.— Hepburn v. Brown, June 6, 1814—2 Dow, 342—1 Ersk, 6, 29, and 30—1 St. 10, 5—Bishop of St Andrews, Dec. 18, 1633 (7720)—Warnoch, Jan. 8,1759 (7730)—Gentles, June 23,1826 (ante, IV. 749).

libelled on, executed by the pursuer and his wife (now deceased) on 26th August, 1833, and the relative minute of alteration annexed, of the same date, to their antenuptial contract of marriage, had the effect of greatly diminishing or abridging, sine causa, the rights previously competent to the pursuer under the said contract of marriage; that the said deeds having been revocable in law by the husband, as constituting a donation inter virum et uxorem, were duly revoked by the pursuer on 16th November, 1835; therefore sustained the reasons of reduction, and reduced, decerned, and declared in terms of the libel; and found expenses due to neither party, and decerned.” ^*

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* “ Note.—Although the argument maintained on each side, in these revised cases is very ample and elaborate, the real question at issue is sufficiently simple. By the mutual disposition, executed by the pursuer and his wife in 1833, he placed at her absolute disposal one-half of the whole property, heritable and moveable, which might belong to her at her death. But, under the antenuptial marriage-contract, the husband was entitled to claim the whole of that property at her death, if there were no children of the marriage. So far, then, the trust-disposition was a clear and incontestable donatio by the husband to the wife during marriage; and, of course, if it be so, it is revocable by the husband.

“But that plea is met by the defenders with the reply, that the husband, by the marriage-contract, lay under a severe and most inconvenient restraint as to the disposal of his own property; that it was thereby destined, at his own death, and failing children of the marriage, to Mrs Cousin and her heirs; and, as a certain relaxation of that provision, was made by the trust-deed, in favour of the defenders, this, it is said, rendered the disposition under reduction onerous, and obviated the plea of donatio.

“It appears to the Lord Ordinary, however, that the defenders’ plea is founded on an entire misconstruction or misconception of the marriage-contract, and of the conveyance therein to the wife and her heirs. That provision, it is apprehended, was, as its words plainly and unequivocally import, entirely contingent on the event of ‘her surviving her said promised husband.’ These words occur twice in the course of the clause, and hence must be held as anxiously inserted to qualify the provision; and, if so, in case of the wife's predecease, the provision lapsed, and the heirs of Mrs Cousin could never have claimed any part of the husband's succession at his death. In that view, the alleged concession, or counter-renunciation, said to have been given to the husband, was founded on delusion or error, and, in fact, constituted a farther donation by the husband to the wife, which he was not under any antecedent obligation to grant.

“To this construction, the chief objection taken by the defenders is, that, if correct, it would have left the children of the marriage without any provision at all out of their father's estate. For it is said that the same clause of the contract which contains the provision to the wife, also contains the provision to the children; and it is argued, that their provision was certainly not meant to depend on the contingency of their mother surviving their father. This, however, is by no means so clear as the parties assume. If the mother did not survive, then, by another clause of the contract, the children were not left unprovided. They were secured immediately in the fee of the whole of the mother's property, beyond the power of alienation by the father, though subject to his liferent; and, looking to the circumstances of the parents, that was probably thought a sufficient provision for the children at the time the contract was entered into.

“But another view may be taken of the provision in this marriage-contract, which (though not urged by the parties) shows that the destination founded on by the defenders could not have the effect of creating any jus crediti, at least in favour of Mrs Cousin's ‘heirs’ whatsover, if she and her children predeceased the husband. It is apprehended that, even if the qualifying words, so much commented on by the parties, had not occurred in the contract, the survivance of the wife would have been implied in law, as an event necessary to transmit a succession (composed partly of heritage, and partly of moveables) to her heirs, under such a destination as that in the present contract. The destination is to Elizabeth Morton (the bride) in liferent, for her liferent use allenarly, and to the child or children of the marriage, ‘and failing such children, then to the said Elizabeth Morton, and her heirs and assignees in fee and property.’ Now, although it is laid down by institutional writers (Erskine, b. iii. t. 9, sec. 9), and has been repeatedly found, that an ordinary legacy, destined to a third party, and his heirs and assignees, does not lapse by the predecease of the specific legatee named, but transmits to heirs, yet a distinction (recognised in the civil law) has been observed in the case of provisions, in which the survivance of the party, for whose benefit the provision is made, is held as an implied condition of the vesting, and consequent transmission, of the provision to heirs, This distinction received effect, and is very clearly pointed out in the reports of the cases of Gordon against Ross (Fac. Coll. 17th November, 1757; Morr. p. 6343), and Russell, 10th March, 1769 (p. 6372). The conveyance here, however, in so far as it related to the bride and the children of the marriage, was by no means a gratuitous legacy, but strictly of the nature of a ‘provision.’

“Farther, even independent of these views, it would have been very doubtful if the heirs brought in generally at the end of a substitution like the present, in a marriage-contract, could have prevented a husband, on the failure of his spouse and of the children of his marriage, to dispose of his property gratuitously, and by a mortis causa settlement, as he chose. No question, a contract of marriage is one of the most onerous deeds known in our law to the parties for whose behoof it is entered into; and, therefore, in so far as the interest of the spouses and children are concerned, their rights are protected against gratuitous alienations of the parents, by an implied jus crediti, which is effectual without any prohibition. But it is otherwise with heirs called generally at the close of a destination, on the failure of the spouses and children; such heirs are not like individuals named in deeds, who have been found, in certain old cases quoted by the defenders, to have a jus quæsitum in a special bequest made to them, even without their knowledge. Heirs whatsoever, brought in at the close of a destination, have only a remote spes, which, if not guarded by a special prohibition against alienation (which it might be in some cases), cannot prevent the granter, or the legal fiar of the property for the time, from vacating the substitution, and alienating the property by deeds either onerous or gratuitous. It is rather believed, that any other view of the effect and import of such destinations would be contrary to the universal understanding of the country.

“If there be not some material fallacy, however, in the preceding views, the gratuitous nature of the deed under redaction is manifest and incontestable. The husband on the predecease of his wife, and failure of the children of the marriage, was absolutely free and unfettered as to the ultimate disposal of any property which he himself might have; yet the contrary assumption was made the ground of obtaining from him a most important surrender of his rights under the contract, by making him a party to the trust-deed under reduction, and inducing him to convey to trustees, and place at the absolute disposal of his wife, his right to one-half of the whole property which she might leave at her death. But even that was not all. By the same deed, the husband gave his wife and her heirs, whether she survived or predeceased him, one-half of the whole property, heritable and moveable, which he himself might possess at his death. It is plain, also, that by the singular exception made in the trust-deed of any accumulation of his own rents and profits, accruing in the interval between her death and his own, which was left at the husband's disposal, he truly got nothing that he had not before. For the husband, in the event provided for in the exception, bad the absolute disposal of his whole property, if his wife predeceased, as that was not taken away from him by the marriage-contract; altogether, therefore, the deed under reduction, under the form of a counter-provision to the husband, truly operated as a farther donation of a part of the husband's property to the wife, which was entirely voluntary and gratuitous; and, on the whole, there seems to be real evidence that the husband's assent to this deed was probably given under the feelings which the law itself presumes, when it renders deeds granted by spouses in favour of each other during a marriage revocable. Indeed, it is candidly stated by the defenders themselves, in their revised case (p. 19), that ‘the pregnancy of Mrs Cousin had been one weighty consideration with the pursuer’ for the execution of the deed libelled on.

“It is only necessary to add, that there is one branch of the defenders' argument enforced with much anxiety, which is conceived to be quite out of place in the present question. It is said that the wife, in point of fact, succeeded to nothing, and acquired no vested right to any of her father's property during the subsistence of the marriage, so that the husband lost nothing by giving up his right to one-half of a succession which, in fact, never reached her, or was vested in her, prior to her death. If that be the case, if Mrs Cousin had no property or jus crediti under her father's trust, which her heir or assignee can make good, it is obvious that there is the less reason to oppose the reduction of the deeds libelled on. But the consequences of the reduction are not to be determined in the present action, which only concludes for reduction of the deeds, and nothing else; at the same time, it is impossible not to remark that, if Mrs Cousin never had right to any of her father's property, it is not easy to see how she could give any conveyance to the defenders, or make any effectual bequest to those interested in the mortis causa settlement, executed by her in September, 1834, and produced in this process.

“These, however, are ulterior questions, which do not fall under the consideration of the Court in the present action.”

The defenders reclaimed on the merits, and the pursuer as to expenses.