Scottish Court of Session Decisions

These were conjoined actions of declarator, of extinction of trust, &c., raised at the instance of Mrs Margaret Elizabeth Grierson, or Hope Johnstone, residing in Dumfries, now known by the name of Mrs Johnstone Beattie, against the Honourable Arthur Dalzell and others, trustees under the marriage-contract between the pursuer and David Baird Hope Johnstone and others. The circumstances out of which the action arose, and the question at issue, appear from the following narrative, taken from the note of the Lord Ordinary.

“The pursuer was married in January 1860 to Mr David Baird Hope Johnstone, a younger son of Mr Hope Johnstone of Annandale, and then ensign in her Majesty's 92d regiment. An antenuptial contract, bearing date 23d and 24th January 1860, was executed, to which, besides the contracting spouses, Mr Hope Johnstone, father of the bridegroom, and Lieut.-Colonel William Grierson of Bardannoch, father of the bride, became parties.

It is very apparent, and was not disputed at the discussion before the Lord Ordinary, that neither of the spouses had any means except what

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came from their respective fathers, or other relatives. In the view of what was necessary for their support, Mr Hope Johnstone become bound to contribute an annuity of £200 during his lifetime; and Colonel Grierson settled on his daughter, exclusive of the jus mariti, an annuity of £100, to be increased to £150 after his death.

By the same contract Mr David Baird Hope Johnstone assigned to certain trustees his rights under certain family bonds of provision; and Colonel Grierson assigned to the same trustees all the estate and effects which should belong to him at the time of his death; as did also the pursuer generally her whole means and estate, and especially what should arise to her from the death of her father.

With regard to the assignment by Mr David Baird Hope Johnstone of his rights under the family bonds of provision, it is declared,—‘On receiving payment of the foresaid provisions and sums of money payable to the said David Baird Hope Johnstone under the contract of marriage and bonds of provision above recited, and hereinbefore assigned to said trustees, they shall pay £2000 of said sums to the said David Baird Hope Johnstone, or his assignees, and invest the remainder, and pay the interest or annual produce thereof, in manner after specified.’

With regard to the estate conveyed by the pursuer and her father, it is declared,—‘Upon the death of the said William Grierson, the said trustees shall without any undue delay, realise and convert into money such of the property and estates hereby conveyed by him and by the said Margaret Elizabeth Grierson as shall not consist of heritage,—at the least, of the lands after mentioned; and shall, within six months after the death of the said William Grierson, pay therefrom, or from the heritable estate if the moveable estate shall be insufficient, to the said David Baird Hope Johnstone, or his assignees, the sum of £5000, and shall invest the remainder, together with the balances of the provisions and sums of money payable under the contract of marriage and bonds of provision above recited, and conveyed to the said trustees, if not already invested on heritable security, or in the government funds, or on such security as they may deem good and sufficient, railway debentures included, in their own names as trustees, for the purposes of this contract.’

The purpose of this investment of the surplus funds is afterwards declared to be payment to Mr David Baird Hope Johnstone, during the subsistence of the marriage, and to the survivor on its dissolution, of ‘the rents, dividends, interest, and annual produce of the whole property, means and estates hereby conveyed or made payable to them, excepting the foresaid sums of £2000 and £5000 hereby directed to be paid to the said David Baird Hope Johnstone, or his assignees, as aforesaid.’ The fee of the subjects was to be retained for the children of the marriage, and failing children, was, so far as derived from Mr David Baird Hope Johnstone's assignment of the family provisions, to go to his ‘nearest heirs whomsoever, or assignees,’ and quoad ultra, ‘to the nearest heirs whomsoever of the said Margaret Elizabeth Grierson, or her assignees.’

It was declared ‘that the provisions hereby conceived in favour of the said Margaret Elizabeth Grierson, and of the children of the said intended marriage, are and shall be in full satisfaction to her of all terce of heritage, half or third of moveables, or other claims whatsoever competent to her by and through the decease of the said David Baird Hope Johnstone, in case she shall survive him, or that her executors or nearest of kin could claim by and through her decease, in case she shall predecease her said husband; and also in full satisfaction to the said children of all claims of legitim or executory competent to them by and through the decease of their said father and mother.’

This marriage was dissolved on 17th March 1865, by a decree of divorce obtained by the pursuer against David Baird Hope Johnstone on account of adultery. There were no children of the marriage.

In the meanwhile, Mr David Baird Hope Johnstone had borrowed considerable sums of money, on the security, inter alia, of his right to the sum of £5000 to be paid to him within six months of Colonel Grierson's death. The defender Mr James Heron, and three other defenders, hold assignations in security to this sum, of various dates in the years 1860, 1863, and 1864. These assignations were intimated to the marriage-contract trustees.

At the date of the divorce on 17th March 1865, Colonel Grierson was still alive, and the time of payment of this sum of £5000 had not arrived Subsequently to the divorce, Colonel Grierson and his daughter, the pursuer, executed a revocation of the marriage-contract, so far as any obligation or conveyance on their part was contained in it. Colonel Grierson died on 30th November 1865. He left a trust-disposition and settlement, under which the pursuer, his daughter, is said to be the sole residuary legatee.

The question has now been raised whether the assignees of Mr David Baird Hope Johnstone are entitled to claim payment from Colonel Grierson's estate of the sum of £5000 stipulated to be paid to that gentleman within six months of Colonel Grierson's death, and assigned to them in security. It is maintained by the pursuer that Mr David Baird Hope Johnstone's own right in this sum had not vested prior to Colonel Grierson's death, and had before that time become forfeited by the divorce. And they maintain that his assignees cannot claim what Mr David Baird Hope Johnstone could not now claim himself.

For the purpose mainly of raising this question, the present action had been raised; and, at the suggestion of the Lord Ordinary, an amendment of the summons was admitted of consent, in order more clearly to bring out the true question at issue. There are other points comprehended in the action, but these are little else than formal. The substantial question is that which has now been stated.”

The Lord Ordinary ( Kinloch) pronounced this interlocutor:—

“The Lord Ordinary, having heard parties' procurators, and made avizandum, and considered the proceedings, Finds, that according to the sound construction of the antenuptial contract between the pursuer and David Baird Hope Johnstone, bearing date 23d and 24th January 1860, there was a power of assignment, anterior to the death of the pursuer's father Colonel Grierson, vested in the said David Baird Hope Johnstone, of the sum of £5000, stipulated by the said contract to be paid to the said David Baird Hope Johnstone, or his assignees, within six months after Colonel Grierson's death: Finds that the said sum was validly assigned in security by the said David Baird Hope Johnstone in favour of the defenders, James Heron, Alexander Borthwick, John Francis

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Partridge, and Robert Mackay, by the deeds of assignation respectively held by them: Finds that the validity of the said deeds of assignation was not affected by the decree of divorce obtained by the pursuer against the said David Baird Hope Johnstone on 17th March 1865; and that the said assignees, are entitled, by virtue of the said deeds of assignation, to claim payment out of the estate of the deceased Colonel Grierson, of the sums due to them respectively under the said deeds: Finds that, except in so far as concerns the interest of the said assignees, the said antenuptial contract is, in respect of the said decree of divorce, ineffectual to vest any right in the said David Baird Hope Johnstone, or any one deriving right from him, in the estate or effects of the said Colonel Grierson, or of the pursuer, or to which the pursuer has succeeded, or in any of the provisions made for the said David Baird Hope Johnstone and the pursuers, or either of them, in the said antenuptial contract, by the pursuer or her said father, and decerns.”

His Lordship added this note (after the narrative quoted above):—

“The Lord Ordinary is of opinion that in this controversy the defenders, the assignees of Mr David Baird Hope Johnstone, are entitled to prevail.

The consideration which is first in order is what is the true intent and meaning of the antenuptial contract in that part of it which provides for the payment, within six months after Colonel Grierson's death, of the sum of £5000 ‘to the said David Baird Hope Johnstone, or to his assignees.’ It appears to the Lord Ordinary that the meaning, and the only reasonable meaning, which can be put on this provision is, that the power was thereby conferred on Mr David Baird Hope Johnstone of effectually assigning the right during the lifetime of Colonel Grierson. It seems to the Lord Ordinary that this is the only rational view which can be taken of the intention of the parties. Plainly the intended spouses were by no means superabundant of cash; and if Colonel Grierson lived inconveniently long it might come to be very necessary for them to raise money in order simply to get along. The Lord Ordinary cannot resist the impression that the very object of the provision being so worded was just to enable Mr David Baird Hope Johnstone to raise money if necessary on the security of the expected sum. The sum is accordingly to be paid ‘to the said David Baird Hope Johnstone, or to his assignees;’ and the Lord Ordinary reads this clause as implying that assignees were, equally with Mr David Baird Hope Johnstone himself to be in right of the sum at the period of its becoming due. He cannot agree with the pursuer in considering the reference to assignees as mere surplusage, or in holding the words to mean assignees after vesting, which is just to reduce them to surplusage; because, after vesting, a right passes to assignees without the necessity of any special declaration. The clause is a very peculiar one. It is not the common devolution on A B, his heirs and assignees, as to which the remark of the pursuer would at least have more plausibility. The disponee and his assignees are not treated conjunctively. The payment is ‘to the said David Baird Hope Johnstone or to his assignees,’ implying, not that the assignees merely come in the room of David Baird Hope Johnstone, but that either he or they would have an equal right of claim at the time of the sum becoming payable. Giving fair effect to the meaning of all the words employed, the Lord Ordinary can reach no other conclusion than that a power of assignment, during Colonel Grierson's lifetime, was purposely and intentionally conferred on David Baird Hope Johnstone, and that the assignations executed by him are valid and operative rights.

The question was mainly pleaded to the Lord Ordinary as a proper question of vesting, and as if the only alternative to be considered was, not whether a power of assignation was or was not conferred, but whether the right did or did not vest in Mr David Baird Hope Johnstone to all intents and purposes. It was asked whether it was to be held that, if Mr David Baird Hope Johnstone died before Colonel Grierson, the right to the sum of £5000 had passed to his legal heirs. It appears to the Lord Ordinary to be not absolutely necessary to determine this precise question. So far as it is necessary to form an opinion on the subject, the Lord Ordinary leans to the opinion that the right did vest in David Baird Hope Johnstone, so as to pass to his heirs. Heirs, or gratuitous disponees, could, of course, only have the right as it stood in David's own person; and, if forfeited in his person, could not be claimable in theirs. If, on the other hand, David Baird Hope Johnstone died without incurring any forfeiture, the Lord Ordinary sees no reason why the right should not have passed to his heirs. It is a right absolutely given, though the period of payment is postponed. The death of Colonel Grierson was not dies incertus in a legal sense. It was an event certain to arrive, though the period of arrival was indefinite. The right is therefore one which, apart from the question of forfeiture by his misconduct, appears to the Lord Ordinary to have legally vested in David Baird Hope Johnstone. But the only question indispensable to be at present decided is, whether the right had vested to the effect of being onerously assigned. The question on that head is simply what, in fair construction, must be held to have been the provision of the marriage-contract. Every question of vesting arising out of a marriage-contract is in truth just a question of intention. If the intention is clear, the legal formula may be easily made to quadrate. There is no incompetency in a right being vested to a limited and qualified effect. If the parties chose, they might effectually contract that the right should not descend to David Baird Hope Johnstone's heirs, but should be capable of being assigned by him for onerous causes. If the deed had expressly borne, ‘with full power to the said David Baird Hope Johnstone, during the lifetime of the said William Grierson, effectually to assign the right to the said sum to assignees for onerous considerations,’ there could have arisen no doubt as to the validity of the assignations now in question. The Lord Ordinary reads the deed as if it had contained these words.

The conclusion at which the Lord Ordinary has arrived from considering the terms of the marriage-contract, has been maintained by the defenders to be fully established by the conduct of the parties. The first loan contracted by Mr David Baird Hope Johnstone on the security of this sum of £5000 is that for £2000, contracted with the defender Mr James Heron. In the bond granted for this loan (which is dated January and July 1860), both Mr Hope Johnstone and Colonel Grierson are cautioners for repayment of the money— and the same deed contains an assignation to the sum of £5000 in question. This, it is said, shews the understanding of all concerned, and emphatically of Colonel Grierson, that the sum was assignable

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during Colonel Grierson's life. The Lord Ordinary has preferred resting his judgment exclusively on the terms of the marriage-contract. But the fact now referred to is confirmatory of the conclusion otherwise arrived at. It would be difficult, in the face of the fact, for either Colonel Grierson, or any one representing him, to deny the power of assignment.

If, according to the terms of the marriage-contract, David Baird Hope Johnstone had the power of assigning this sum during Colonel Grierson's lifetime, the question which remains is, whether the assignation, thus in itself competent, was vitiated by the after decree of divorce obtained against David Baird Hope Johnstone by the pursuer? This question appears to the Lord Ordinary of easy solution; indeed, to be solved by the very circumstance that the assignation was in itself competent and effectual. At the time of granting the assignation, David Baird Hope Johnstone was under no disqualification or forfeiture. He, ex hypothesi, validly divested himself at this time of his right in favour of his creditor. The right lay in his person unforfeited and undiminished, and it was assigned as such. If this be so, it is impossible, as the Lord Ordinary thinks, to maintain successfully that the creditor could he affected by any after conduct on the part of David Baird Hope Johnstone. It would be ludicrous to say that David Baird Hope Johnstone could grant an assignation, and straightway render it ineffectual by going and committing adultery. The assignee cannot injure the right of the cedent by anything done by him posterior to the assignation. From the nature of the case, any after forfeiture of the right of David Baird Hope Johnstone must be strictly personal to that gentleman. If once it be found that a valid power of assignment resided in David Baird Hope Johnstone during Colonel Grierson's lifetime, the incapacity of the creditor to be affected by the after divorce obtained against David Baird Hope Johnstone appears to the Lord Ordinary to be necessarily involved in the finding.

A somewhat wider question than that to which the Lord Ordinary has now addressed himself was elaborately discussed before him. It was maintained by the defenders that a distinction exists in the law of Scotland between the consequences of divorce for wilful desertion and those of divorce for adultery; the distinction being, that whereas in the former case the statutory result is, ‘that the party offender tyne and lose their tocher, and donationes propter nuptias,’ the common law result in the other case excludes the loss of tocher, which the offending husband is permitted to retain. This, it was said, was fixed by the well known case of Justice v. Murray, 13th January 1761, Mor. 334, of which the rubric is the following:—‘A wife obtaining a divorce for husband's adultery has right to her jointure as if he were dead, but she cannot demand back her portion.’ The provision of £5000, payable to David Baird Hope Johnstone six months after Colonel Grierson's death, the defenders contended, was to be regarded as proper tocher, and to be considered as not forfeited by the decree of divorce. The somewhat startling result is, that supposing no assignment to have been granted at all, David Baird Hope Johnstone, the adulterous and divorced husband, would be now entitled to claim for his personal benefit the whole sum of £5000 from the estate of his wife's father.

The Lord Ordinary participates in the doubts expressed by a very weighty authority (Mr Ivory, in his notes to Erskine, 1, 6, 48) as to whether the alleged distinction can be held authoritatively settled by this case of Justice v. Murray, in which the Court pronounced successive judgments directly in the teeth of each other. It would be difficult, as the Lord Ordinary thinks, to discover satisfactory reasons for holding the legal penalty imposed on wilful desertion to be more severe than that imposed on adultery, which is desertion and a great deal more. On the other hand, a decision of the Supreme Court which has stood without any opposite judgment for more than a century is not to be lightly set aside. But it appears to the Lord Ordinary that all difficulty is removed in the present case by the consideration that the sum of £5000 now in question does not possess the legal character in the dos or tocher to which the judgment of the case of Justice v. Murray was made applicable. What was considered in that case to be dos or tocher was a sum of money paid down to the husband in cash at the date of the marriage. The action in that case was an action at the wife's instance for restitution of a sum of money which had been so paid. The whole argument proceeded on the supposed difficulty or hardship of forcing back from the husband money which had been actually paid, and was constructively spent by him in marriage charges. There is no question in the present case as to repetition of any sum of cash paid to David Baird Hope Johnstone at the date of the marriage. The question on this branch of the case is, whether David Baird Hope Johnstone is entitled, after being divorced for adultery, to claim from the estate of his wife's father a sum of £5000, not payable till six months after the father-in-law's death—an event which might not occur till twenty or thirty years after the marriage—or as many after the adultery. This is an entirely different question from that raised or adjudicated in the case of Justice v. Murray.

The Lord Ordinary is very clearly of opinion that, in any question with David Baird Hope Johnstone personally, there would be no legal ground for maintaining that a claim for this sum of £5000 lay at his instance. The Lord Ordinary is of opinion that David Baird Hope Johnstone forfeited by the divorce all legal right to claim this sum, and generally all the provisions made in his favour by the pursuer or her father, saving always the right of his assignees. That gentleman has not appeared personally in the present process to maintain any individual claim; and in regard to him, any judgment is properly in absence. With regard to his assignees in the right to the sum of £5000, who have appeared and litigated, the Lord Ordinary has found other sufficient grounds on which to consider their right to be protected against the forfeiture incurred by the divorce. If the Lord Ordinary be right in his conclusion on this point, the assignees have no interest to press the consideration of the other and larger question.”

The pursuer, reclaimed.

Fraser and M'Kie for relaimer.

Young and Gifford for respondents.