Scottish Court of Session Decisions

In January 1866 Jane Duncan or Thomson, wife of the pursuer, became entitled to a share in the estate of her deceased uncle, William Grant, and in the following month she intimated to Grant's executor a claim for a provision in terms of the 16th section of the “Conjugal Rights (Scotland) Amendment Act 1861,” to be made to her from the property thus falling to her. Thereafter, in November 1866, the pursuer and his wife executed a trust-deed narrating the 16th section of the Act, the claim made by Mrs Thomson, and that £236 of the fund had been paid to the granter of the deed, and conveying to trustees a sum of £600, and a farther sum not then realised coming to the wife from Grant's estate, for the purpose of paying the income to the wife, exclusive of the jus mariti, and after her death to the pursuer, and the fee to the children.

The pursuer, in December 1867, brought this action, asking declarator that the trust-deed was revocable, and had been revoked by him, and that he was entitled to payment of the £600. His wife had previously brought an action of separation and aliment against the pursuer, and on 5th February 1868 obtained decree, the Lord Ordinary (Kinloch) holding that the provision in the trust-deed was sufficient aliment.

In this action his Lordship held that “the trust-deed libelled, so far as granted for the purpose of paying the yearly proceeds of the sums thereby conveyed to the defender Jane Gray Duncan, the wife of the pursuer, by way of aliment, was not, and is not, revocable by the pursuer, and that the trustees under the same are entitled to hold and invest the said sums for the purpose of making such payment to the said defender during her lifetime.”

The pursuer reclaimed.,

Fraser and Guthrie for reclaimer.

Clark and Lee for respondent.

The Court adhered.