Scottish Court of Session Decisions

Mrs Somner brought this action against the trustee under a voluntary trust-deed executed by her husband for behoof of his creditors, and also against the executors of her father, the late John Clay, for their interest, concluding to have it found and declared that the defender, as trustee foresaid, was not entitled to uplift or receive the share of residue provided and bequeathed to the pursuer under the settlements of her said father, except upon condition of making therefrom a reasonable provision for the support and maintenance of the pursuer, under the 16th section of the Conjugal Rights Act. The said section, inter alia, provides “when a married woman succeeds to property, or acquires right to it by donation, bequest, or any other means than by the exercise of her own industry, the husband or his creditors, or any other person claiming under or through him, shall not be entitled to claim the same as falling within the communio bonorum, or under the jus mariti, or husband's right of administration, except on the condition of making therefrom a reasonable provision for the support and maintenance of the wife, if a claim be made therefor on her behalf, and in the event of dispute as to the amount of the provision to be made, the matter shall, in an ordinary action, be determined by the Court of Session, according to the circumstances of each case, and with reference to any provisions previously secured in favour of the wife, and any other property belonging to her exempt from the jus mariti.”

It appeared from the statement of the pursuer that her father died on 26th June 1866, and her mother, who liferented his whole moveable estate, on 18th June 1870. On 10th April 1867 Mr Somner, the husband of the pursuer, borrowed the sum of £500, and for this sum granted a bond, in which the pursuer concurred, assigning her share of the residue of her father's estate in security of the said loan, and providing that if the creditors, in virtue of the said assignation, should receive payment of the whole of said share, they should be bound, after satisfying their own claims, to pay over the balance to Mr Somner, the husband. On 4th June 1869 his affairs became embarrassed, and he executed the trust-deed in favour of the defender, specially assigning the said share of residue under burden of the prior assignation. On 5th July 1870, a few days after the death of the liferentrix, the pursuer made a claim under the Act. The defender pleaded—“(1) The pursuer's share of the residue of her father's estate having vested absolutely in her husband, the said John Usher Somner, jure mariti, and the said John Usher Somner having assigned the same to the defender for behoof of his creditors, and the said assignation having been duly intimated, all before any claim on the said share was made by the pursuer, the defender has obtained complete and lawful possession of the said share, to the exclusion of the pursuer's claim under ‘The Conjugal Rights (Scotland) Amendment Act, 1861;’ and he is therefore entitled to decree of absolvitor, with expenses. (2) The pursuer having concurred with her husband, the said John Usher Somner, in a prior assignation of the said share, must be held to have waived any right which she may have had to claim a provision therefrom.” He further pleaded that, in any view, the sum claimed by the pursuer (£1250) was in excess of a reasonable provision for her support and maintenance.”

A proof was led before the Lord Ordinary ( Jerviswoode) who pronounced the following interlocutor;—

Page: 389↓

“ Edinburgh, 23d December 1870.—The Lord Ordinary having heard counsel for the parties on the proof and whole cause, and having made avizandum in terms of the preceding interlocutor of the 16th current— Primo, Repels the first plea in law stated on behalf of the defender Charles Anderson, and also repels the second plea for him, in so far as the same is pleaded to the effect of absolvitor in the action: Secundo, Finds that in or about the month of June last (1870) the pursuer became entitled, under the terms of the deed of settlement of her father, the deceased John Clay, to a share of the residue of his moveable estate, which amounted, as in October last, to the sum of £1787, 17s. 11d. or thereby: Tertio, Finds that on or about 10th April 1867 Mr John U. Sumner, the husband of the pursuer, borrowed and received for his own uses the sum of £500, and granted therefor, with concurrence of the pursuer, a bond and assignation in security, all as set forth in the 3d article of the condescendence, and that the said sum and interest due thereon, amounting together to £548, 19s. 3d., were, under said assignation in security, and on or about 10th October last, paid to the creditors therein by the executors of the said deceased John Clay out of the pursuer's said share of the residue of the moveable estate of her father, the said John Clay, conform to the discharge and retrocession, which forms No. 21 of process; and that, after payment of the said sum of £549,19s. 3d. as aforesaid, there remains in the hands of the said executors a balance of said share amounting to £1238, 18s. 8d., as at said 10th October last: Quarto, Finds that in or about the year 1869 the affairs of Mr Somner, the husband of the pursuer, became embarrassed, and that on or about the 4th June 1869 he executed a trust-deed for behoof of his creditors, as set forth in the fourth head of the condescendence for the pursuer: Quinto, Finds that at the date of the said trust-deed neither Mr Somner nor any party in his right had obtained complete and lawful possession of the balance which remained unassigned of the said Bum of £1787, 17s. 11d.: And Sexto, Finds that the de-fender Charles Anderson, trustee for the creditors of the said John U. Somner, is not entitled to uplift or receive the foresaid balance of the pursuer's share of the residue of her father's moveable estate otherwise than under and subject to the condition of investing and settling therefrom, for behoof of the pursuer, the sum of One thousand pounds (£1000) sterling, but exclusive always of the jus mariti and right of administration of the said John U. Sumner, as concluded for: Finds no expenses due to either party, and decerns.”

The Trustee reclaimed.

Muirhead and Darling for him.

Watson and Rankine for Mrs Somner.

At advising—