Scottish Court of Session Decisions

William Hogg, by his trust-disposition and settlement, appointed his trustees to pay to his widow, and to his daughter Grace Hogg or Wilson, wife of Robert Wilson, equally, if they survived him, and to the survivor of them, the whole free income of his estate. The jus mariti of Mrs Wilson's husband was excluded. Hogg died in May 1847. His widow and daughter survived him, and jointly liferented his estate, which yielded about £50 annually, till March 1856, when the widow died. Thereafter the estate was life-rented solely by Mrs Wilson till her death in 1867. At various periods, from 1847 down to 1867, sums of money were deposited by Mrs Wilson in bank, and otherwise invested, in her own name; and in 1858 she purchased a small heritable property, worth about £145, taking the title in her own name. She left a trust-disposition and settlement conveying her whole estate to trustees, but, as the persons named as trustees declined to accept, the pursuer Kenneth Mackenzie was appointed judicial factor on her estate.

Mackenzie now brought this action against Robert Wilson and others, for declarator that he, as said factor, had a right to the whole estate, heritable and moveable, left by Mrs Wilson, and Stilling on Robert Wilson to count and reckon for his intromissions with his deceased wife's estate.

The defender Wilson alleged that during the marriage he had supplied the means for housekeeping. except “ a small sum which his said wife drew annually from the property which had belonged to her said father William Hogg and his wife Marian Henchlewood or Hogg, and which she undertook and was bound to apply in the same manner.” He farther alleged that his wife had saved out of the housekeeping money the various sums which had been applied by her partly in purchasing the heritable property, and party in investment in deposit-receipts. “ These sums were all lodged on deposit-receipts or other obligations, payable to Mrs Wilson simply, without any exclusion of the jus mariti. The defender, who had sufficient means of his own otherwise, did not object to these moneys being so deposited. He knew from his wife's disposition that there was no danger of their being squandered. He also knew that, being in his wife's name, they belonged to himself, and that if he required them they were at his command at any time. Considering that it was the same thing as if he had deposited the I monies himself, he allowed his wife to continue I making these deposits, the idea of which seemed to gratify her while it did him no injury.”

Page: 353↓

The Lord Ordinary (Jervis Woode) sustained the claim of the judicial factor, adding this Note:— “ The Lord Ordinary has become satisfied, since he heard the parol evidence which was adduced before him, and has anew considered the debate, with the documents founded on, that the pursuer, the judicial factor on the deceased Mrs Wilson's estate, has established the case which is set forth on the record on his behalf. There cannot, in the Lord Ordinary's opinion, be ground for doubt that it was a competent act on the part of the deceased William Hogg to provide for his daughter, so as to exclude the jus mariti of her husband, in the distinct terms contained in his deed of settlement. If this be so, it seems clear, and the point appears to have been so assumed in the recent case of Davidson v. Davidson, 28th March 1867, that sums of money so exempted from the jus mariti, if saved by the wife, and so retained or invested by her as to be capable of identification, and of being traced and identified as the produce of the capital sum to which the exclusion applies, must remain the property, and at the disposal of the wife, free from the husband's control. As respects the character of the evidence on which the judicial factor here relies, as proof that the property and the sums he claims were truly acquired by the deceased Mrs Hogg or Wilson in her own right, the Lord Ordinary thinks it unnecessary to say much. It must speak for itself, but he cannot say that he has entertained any serious doubt as to its sufficiency, if, as he holds it must be, it be taken as competent evidence at all. It may, he thinks, be safely assumed, even from the evidence of the defender himself, that the deceased Mr Wilson was well aware of the fact that his wife was making investments and deposits of the funds which she considered her own, and that he did not interfere with her doing so. He may have supposed he might assert a right to these sums at an after time, but the fact that his wife was saving on her own account, and not on his, must have been known to him.” Wilson having died, his trustees reclaimed.

Pattison and Hall for reclaimers.

Gifford and Paterson for respondent.

At advising—