Scottish Court of Session Decisions

This was an advocation from the Sheriff Court of Dumfries. The pursuer was married to the defender's son in 1860, and the marriage was dissolved by divorce on account of the husband's adultery in 1865. There was an antenuptial contract of marriage to which the defender was a party, and in it he undertook the following obligation:—“Further, the said John James Hope Johnstone binds and obliges himself, during his lifetime, to pay to the said David Baird Hope Johnstone; whom failing, to the said Margaret Elizabeth Grierson; whom failing, to the children of the said intended marriage, a yearly annuity of £200 sterling, and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first payment thereof at the term of Whitsunday next to come for the half-year preceding that date, and the next payment thereof at the term of Martinmas following, and so forth half-yearly, termly, and proportionally thereafter during the lifetime of the said John James Hope Johnstone, with a fifth part more of the said annuity due at each term of liquidate penalty, in case of failure in the punctual payment thereof.”

In 1863 and 1864, before the divorce, the defender's son had assigned his rights under this obligation to onerous creditors.

After the divorce the pursuer raised an action against the defender for payment of the annuity, and her right to recover it depended on the question whether, by reason of the divorce she was entitled to it under the contract.

The Sheriff-Substitute (Trotter) and Sheriff (Napier) held that she was not, on the ground that the words “whom failing,” in the contract, meant failing the husband by predecease during the subsistence of the marriage. On advocation the Lord Ordinary (Kinloch) altered the judgments of the Sheriffs, and found that, on the dissolution of the marriage between the pursuer and David Baird Hope Johnstone, by decree of divorce obtained against the latter on 17th March 1865, in respect of adultery, the defender became bound to pay to the pursuer the annuity of £200 libelled.” He thus explained his reasons for so finding:—

“A discussion arose before the Lord Ordinary as to the precise import and latitude of the words ‘whom failing’ inserted in this contract, as the condition of the husband which created the emergence of the right in favour of the wife. The defender contended that the words, legally construed, implied failure by death exclusively. The Lord Ordinary is disposed in this matter to agree with the defender. He can find no sufficient authority for holding the words ‘whom failing’ to mean anything else in a Scottish deed than ‘whom failing by death.’ He reads the deed as if the defender became bound to pay the annuity ‘to the said David Baird Hope Johnstone; whom failing by death, to the said Margaret Elizabeth Grierson.’ The defender cannot ask a more limited construction of the deed.

“But whilst so reading the deed, the Lord Ordinary holds it to be the settled rule of the law of Scotland that in the case of a divorce in consequence of adultery on the part of the husband, the innocent wife is entitled to all the provisions contained in her antenuptial contract, in exactly the same way as if the husband were naturally dead. The law transfers to the case of the divorce the provisions made in words for the case of death, and enforces the obligation in both cases alike. In the eye of the law, the wife is in such a case made prematurely a widow, and is entitled to her provisions as such, whether legal or conventional. All the parties to the antenuptial contract transact in the knowledge of the law, and on the footing

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which the law declares. It appears to the Lord Ordinary that the law in this acts both wisely and tenderly, in the case of a wife so situated.

“The authorities appear to the Lord Ordinary to be express and unequivocal. Lord Stair says (i. 4. 20)—‘Marriage dissolved by divorce, either upon wilful non-adherence (or wilful desertion) or adultery, the party injurer loseth all benefit accruing through the marriage, as is expressly provided by the foresaid Act of Parliament 1573, cap. 55, concerning non-adherence; but the party injured hath the same benefit as by the other's natural death.’ Lord Bankton says (i. 5. 134)—‘Divorce being obtained, the innocent party retains all the benefits that he or she had before the divorce, and enjoys the provisions, conventional and legal, as if the person divorced, or offender, was naturally dead. On the other hand, the offender loses all benefits that otherwise, by law or paction, might accrue through dissolution of the marriage.’ Mr Bell, in his Principles (see. 1622) lays it down as one of the consequences of divorce, ‘that the innocent party has the benefit of all legal and conventional provisions, and the guilty is barred from revoking donations.’ That the general principle is correctly laid down in such expressions as these was directly recognised by the Court in the case of Thom v. Thom, 11th June 1852, 14 D. 861.

“The defender scarcely, if at all, disputed the general principle; but he maintained that it only applied to the case of legal provisions, such as terce, and of such conventional provisions as were made by the spouses for one another, but not to a conventional provision made by a third party, as in this case. The Lord Ordinary can find no room for the distinction. When the father of one of the parties becomes, as here, a contracting party in the antenuptial contract, and comes under obligations to the other of the parties, as the defender did here to his intended daughter-in-law, he is as much under onerous contract as the party more immediately concerned. It not unfrequently happens that what is engaged for by the father of the intended husband is all that the intended wife has to look to in the event of widow-hood. It might quite well have happened that this annuity of £200 was all the pursuer had given her in the case of her becoming a widow. The Lord Ordinary cannot find in such a contract a different meaning in the case of the father-in-law from what it bears in the case of the husband. If, in the latter case, provision in the case of death becomes equally provision in the case of widow-hood by divorce of the husband, the Lord Ordinary sees no reason why it should not equally be so in the former. There is no hardship in so holding; for, in entering into the contract, the father-in-law knew as much about the provisions of the law, and its identification of death and divorce, as did the husband; and must be held to have bound himself in exactly the same contemplation.

“Accordingly the Lord Ordinary does not find the authorities to have drawn any distinction between conventional provisions by the husband, and those by a third party, such as the husband's father. The reverse is emphatically the case. In the case of Justice v. Murray, 13th January 1761, Mor. 334, the decision, as given in the rubric, was this—‘A wife obtaining divorce for her husband's adultery has right to her jointure as if he was dead; but she cannot demand back her portion.’ The decision on the last point has been thought open to controversy; but the judgment that the innocent wife ‘has right to her jointure as if her husband were dead,’ seems to have passed without dispute; and the session papers show that what is called the jointure was simply, as here, an annuity of £100 settled on her by the husband's father in the event of the husband's predecease. In the case of Thom v. Thom, above alluded to, the divorce was obtained in respect of the adultery of the wife. The wife's father had settled certain lands on the spouses, ‘in conjunct fee and liferent, and to the longest liver in liferent, but for the husband his liferent use only.’ This was a conventional provision made by a third party. But the Court had no difficulty in holding that, on the divorce of the wife, the husband was entitled to the whole liferent as if she were naturally dead. In the case of Macalister v. Macalister, 18th July 1854, Scottish Jurist, xxvi. 597, the wife had in like manner been divorced for adultery; and a provision by the wife's mother of a certain sum to the spouses ‘in conjunct liferent, and the survivor of them in liferent for their liferent use allenarly, and to the child or children in fee,’ was held on the divorce of the wife to give the entire liferent to the husband, so long as he survived. The Lord Ordinary cannot discover any decision to the contrary of this. The case quoted by the defender of the Countess of Argyll v. the Earl of Argyll, 19th December 1573, Mor. 327, is no contrary authority; for the right which was there in issue was one proceeding from a third party during the subsistence of the marriage; and the distinction was expressly taken that ‘this tack cannot come under this decreet, by reason the samen was set to her umquhile husband, and to her, the longest liver of them two, long after the completing of the marriage by a stranger, and not by her husband for the causes of marriage.’ There is no occasion in the present case to consider the effect of divorce on the interests of the parties, in any right proceeding from a third party during the subsistence of the marriage. Such a right, in the general case, cannot come under the head of a marriage provision, legal or conventional. The present question regards a conventional provision made in an antenuptial contract, and expressly made intuitu matrimonii. In such a case, it appears to the Lord Ordinary that there is no ground for a distinction, in respect of a conventional provision between the husband and the husband's father.

“It appears to the Lord Ordinary that the judgments against the claim of the pursuer, pronounced successively by the learned Sheriffs, proceed to no small extent on a petitio principii. It is said that, by a just interpretation of the words of the contract, the defender must be assumed to have been settling the annuity, not on the spouses, but on his son David Hope Johnstone individually, and intending to benefit him individually, so long as he lived, and only to provide for the pursuer in the event of his actual predecease. In other words, and as the plea was expressed to the Lord Ordinary, what the defender intended was personal aliment to his son, and only a reversion to the pursuer in the event of his son dying before her. But it appears to the Lord Ordinary that this begs the question in issue. Assuredly it omits the consideration, that the obligation is contained in an antenuptial contract, and was expressly contracted in contemplation of the marriage. It seems to the Lord Ordinary hopeless to say that the defender had only in view these separate and individualaliment of hisson David Hope Johnstone. It was plainly the aliment of his son as living with his intended wife—in other words, the aliment of the spouses—which the defender had in contemplation.

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It was joint aliment to the spouses during the life of David Hope Johnstone, and then the separate aliment of the defender as his widow, which the defender had in view. Any other construction is a construction contrary to the plainest reason. The question now is, What is to happen on the dissolution of the marriage, not by David's death, but his crime? Most probably this was a contingency not directly in view of any of the parties. The intending spouses would never dream of it. Very likely it was as far from the contemplation of the grave father-in-law as of the rapturous lovers. But that the intended provision was one not for the individual benefit of David Hope Johnstone, but for the aliment of the spouses, and the maintenance of the pursuer as his widow, the Lord Ordinary cannot doubt. If this be so, then the law (as the defender was bound to know) steps in and says, that the same benefit shall enure to the pursuer, made a widow by her husband's crime, as would have come to her made a widow by her husband's death.

“The practical result of the Sheriff's judgment is somewhat startling. It is, in the first place, that David Hope Johnstone, dissolving the marriage by his own misconduct, is to get, for his exclusive benefit, an annuity which was given him to sustain himself and his wife. This does not exactly tally with Lord Stair's doctrine that ‘the party injurer loseth all benefit accruing through the marriage;’ for in this view ‘the party injurer’ not only does not lose anything, but gets double benefit. With regard to the party injured, how stands the matter? She loses even the joint and common benefit which the annuity gave her during the subsistence of the marriage. She is deprived of all support from the annuity, which her husband is to enjoy by himself so long as he lives; and at some indefinite date-it may be forty or fifty years hence-when Mr David Hope Johnstone dies-she steps, as his constructive widow, into a very singularly postponed jointure.

“The Lord Ordinary cannot adopt a conclusion having such a practical result. He thinks the sound view of the case is to hold the provision in the antenuptial contract as made intuitu matrimonii, for the joint benefit of the spouses, and the maintenance of the pursuer as David Hope Johnstone's widow, if such she should become by his death. If this be the true meaning of the obligation, the pursuer comes now to have right under it, not indeed by virtue of the express words of the contract, but by virtue of a legal implication as to the identity of death and divorce, which must be held to have been in the knowledge of the contracting parties, and in the knowledge of which all must be held to have contracted.”

The defender having reclaimed,

Young and D. B. Hope, for him, argued—The law and authorities quoted by the Lord Ordinary in his note applied only to the forfeiture of rights granted by the spouses inter se in contemplation of marriage, and not to rights granted, as in the present case, by a third party. It has never yet been decided that an innocent third party like the defender should suffer in consequence of his son's misconduct. The annuity was an alimentary provision provided by the father for his son, and still payable to him. The father would suffer if he had to pay the annuity to the pursuer now, because his son was unable to support himself, and his father must, in consequence of the natural obligation of law, aliment him. The result would be that the defender would have to pay the annuity twice—that is, £400 a year, instead of £200, as intended by the contract. This would be most unjust. The words “ whom failing” meant whom failing by death—that is physical, not civil death. The parties never contemplated divorce, and the intention of parties must interpret the contract. The Lord Ordinary had erred in holding that the case of Justice v. Murray was an express authority in favour of the pursuer. The question as to the lady's jointure in that case was never directly raised. The lady obtained a decree for her jointure; but, as shown by the Session papers, it was a decree in absence. Years afterwards, she raised an action against her husband for repetition of her tocher; but, after three conflicting judgments, the only point decided was that an innocent wife had no claim for repetition of tocher. This case, therefore, has no bearing on the present. Neither has the case of Thom v. Thom, because, in that case, the jointure was constituted by a conjunct heritable right, not a personal obligation to pay a sum of money, as in this case. The same remark applies to the case of Macalister v. Macalister. Farther, the Act 1573, c. 55, says that the offending party shall forfeit the tocher and the donationes propter nuptias, but the annuity in question was not a donation propter nuptias in the true meaning of that phrase.

Fraser and M'Kie, for the advocator, argued—Two questions are here involved. 1. What is the meaning of the words “ whom failing” in an antenuptial contract of marriage? 2. What are the legal effects of divorce as regards the rights of third parties? “ Whom failing” in this contract means civil death as well as physical death. The parties when they entered into the contract knew the law, that divorce had the same legal effects as death, and must be presumed to have contracted on that footing. It was an implied part of the contract that divorce should affect the rights of parties in the same way as death. The annuity was given intuitu matrimonii, and constituted by an onerous deed. The whole deed must be looked at. The annuity was given for the mutual benefit and support of the spouses. The wife might reasonably expect to share a portion of it during the subsistence of the marriage. It was not given to the husband alone. If alimentary at all it was for the mutual aliment of the spouses. Besides, the wife's father settled an annuity of £100 on his daughter, exclusive of her husband, of which, however, he would share the benefit in so far as it would lessen his domestic expenditure. A sum of £5000 was also settled out of the lady's fortune on the husband or his assignees, and that sum has been assigned away by him, and it has been held that he had a right to assign it. So that it is evident from the other clauses of the contract that the annuity in dispute was part of a transaction—a quid pro quo given by the defender, on which the lady relied when entering into marriage. If the pursuer is not held entitled to the annuity now, the defender will derive a benefit from his son's misconduct, because his son, having broken the contract, cannot sue his father for payment of the annuity. The law cannot sanction such a result. Even admitting that the annuity was given in lieu of the father's natural obligation to aliment his son, the law, as decided in the case of Maule, only compels a father to give his son the bare necessaries of life. So, even in this view, the pursuer would still be entitled to claim half of the annuity, as the father would not be bound to pay his son more than £100 a year, if even so much. But the

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annuity has been assigned, so that in any view the defender must aliment his son.

Further, the authorities referred to by the Lord Ordinary have already settled the points in dispute in this case. The institutional writers have drawn no distinction between rights constituted by the spouses inter se and rights constituted by a third party, in favour of one of the spouses. Divorce applies not only to the spouses, but to the contracting parties. The annuity was a donation propter nuptias. When by the former law marriage was dissolved by the death of either of the parties within a year and a day, everything was restored hinc inde, though the rights were constituted by third parties—Stair, i. 4. 19. In the present case the annuity is not given by a third party, but by a party to the contract who must be presumed to have known the law that divorce had the same effect as death, and took his risk of that. “Whom failing” does not always mean failure by death. In a deed of entail, which declares that a person shall forfeit his right on, for instance, his succeeding to a peerage, the words “whom failing” would include him if he so succeeded. The following authorities were referred to, besides those mentioned by the Lord Ordinary:—1 Bell's Comm. 634; Dirleton, voce Jus Mariti; Ivory's Ersk. 1. 6. 48; Wallace's Inst., p. 230–233; Calder v. Ross, 1610, M. 6167; Mackenzie's Roman Law, pp. 110 and 114.

At advising,