Scottish Court of Session Decisions

This was an action of declarator, multiplepoinding, and exoneration brought by the beneficiaries under a marriage contract, in name of the trustee under it. The deed under which the case arose was an antenuptial contract of marriage dated in 1841, entered into between James Martin and Elizabeth Horn, afterwards his wife, whereby James Martin renounced and made over his jus mariti and right of administration and courtesy to the said Elizabeth Horn, and power was reserved to the said Elizabeth Horn to dispose of her estate during her life or by mortis causâ deed without his consent. In order more effectually to preserve and maintain her estate for behoof of herself and her heirs and assignees, Elizabeth Horn conveyed the same to trustees; and it was further declared that if Elizabeth Horn should not at the time of her death have disposed of her estate, heritable and moveable, in virtue of the powers to that effect reserved to her, and in case she should predecease James Martin at any time after the completion of the marriage, then, and in that event, the right of courtesy of James Martin should revive, and be as valid as if no renunciation of it had been made, but that his right of courtesy should be contingent upon his not entering into a second marriage, and should lapse if he should ever again marry—and upon the death or marriage of James Martin, the estate of Elizabeth Horn should descend and belong to her lawful child or children, if any were of the marriage, equally among them, share and share alike; and failing such children at the death of Elizabeth Horn, then the estate was to fall and belong to certain parties therein named in life-rent and fee.

Elizabeth Horn predeceased her husband, and died in 1844 without having otherwise than as above disposed of her estate. James Martin, her husband, is still alive, and has not entered into a second marriage. There were two children born of the marriage between him and Elizabeth Horn, who have both attained majority,

In these circumstances James Martin and his two children brought the present action, in name of the only surviving trustee under the marriage-contract, to have it found and declared that the purposes for which the trust was constituted have been fulfilled, and that the right formerly vested in the trustees under the same was extinct, and for distribution of the estate of Elizabeth Horn.

They contended that the provisions in their favour vested a morte testaioris, and that as they were the only parties interested in the estate in the events which had occurred, and had all attained majority, and were desirous that the trust should be brought to an end, the Court should find and declare as concluded for.

The trustee was quite willing that the trust should be brought to a close, but he desired judicial sanction being given to this measure, and in discharge of his duty he contended (1) that the provisions in favour of the children of the marriage had not yet vested; (2) that at all events the period for payment of their shares had not come, and that it was the intention of the truster that the trust should continue till the death or second marriage of James Martin; and (3) that he was justified in resisting the conclusions of the action until it was judicially ascertained that the trust had come to an end.

Parties having been heard, the Lord Ordinary has issued an interlocutor which, we understand, has been acquiesced in by the parties, in whieh he “Finds and declares that the time has arrived for the nominal raiser, William Lyon, denuding and being exonered of the trust constituted by the marriage contract libelled, and appoints the cause to be enrolled in order to be proceeded with in accordance with this finding.” In a note to his interlocutor the Lord Ordinary says:—

“The Lord Ordinary has no doubt that the two daughters of the marriage (now both major) have the fee of the trust-estate fully vested in them. It was conceded that their father had a liferent in the heritable subjects, defeasible by his contracting another marriage. There appears to the Lord Ordinary no reason why, with mutual consent, the daughters should not have the fee conveyed to them, subject to this defeasible liferent.”