Scottish Court of Session Decisions

In the conjoined actions of reduction, multiple—poinding, and exoneration, raised in connection with the succession of William Davidson, sometime doctor of medicine, Glasgow, the question came to be whether it was ultra vires of the said William Davidson, by gratuitous mortis causa deed, to affect the rights of the only child of his marriage, who survived him. to two-third parts of his estate provided by his antenuptial contract of marriage to the child or children of his marriage and their issue? This question the Lord Ordinary determined in the following interlocutor, which fully narrates the facts of the case:—

“Edinburgh, 27th January 1873.—The Lord Ordinary having considered the conjoined actions, Finds that the deceased William Davidson, doctor of medicine, Glasgow, by antenuptial contract of marriage entered into between him and the pursuer and claimant, Mrs Elizabeth Williamson or Davidson, dated 19th October 1835, bound and obliged himself to provide two-third parts of the whole estate, funds, and effects, heritable and moveable, which should belong to him at the time of his death, after deduction of the debts due by him, to the child or children of the marriage between him and the said Mrs Elizabeth Williamson or Davidson, and to their issue, as therein mentioned: Finds that it was ultra vires of the said William Davidson, by gratuitous mortis causa deed, to diminish, limit, or affect the rights of the children of the marriage, and, in particular, of his daughter Isabella Stevenson Davidson, who was the only child of the marriage who survived him, to the said two-third parts of his estate, and that the provisions of the trust-disposition and settlement and codicils of the late Dr Davidson, in so far as they diminish, limit, or affect said right, were ultra vires, and are ineffectual: Therefore finds that the said Mrs Elizabeth Williamson or Davidson, as disponee and executrix of her daughter, the said deceased Isabella Stevenson Davidson, has right, by virtue of the provisions of the said antenuptial contract of marriage, to two-third parts of the said estate which belonged to her husband at his death, after deduction of the debts due by him: And with these findings, appoints the cause to be enrolled, that they may be given effect to, and the cause finally disposed of.

Note.—By antenuptial contract, dated 19th October 1835, between the deceased William Davidson and the claimant Mrs Elizabeth Williamson or Davidson, now his widow, inter alia, Mr Davidson undertook an obligation on the following terms:—‘And further, the said William Davidson binds and obliges himself and his foresaids to provide two-third parts of the whole estate, funds, and effects, heritable and moveable, real and personal,

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wherever situated, which may be belonging and pertaining to him at the time of his death, after deduction of the debts due by him, to the child or children of the said intended marriage, and to the issue of the bodies of such child or children as representing their parent as after mentioned, whom failing, to his own heirs and assignees; but it is expressly declared that if there shall be more than one child of the said intended marriage, it shall be in the power of the said William Davidson, at any time of his life, and even on deathbed, to apportion and divide, at such times of payment, in such manner, and under such conditions and restrictions as he shall think proper, among the said children, the above provisions in their favour; and failing of such division, the said provision shall be divided among the said children, share and share alike; declaring always, that if any child or children of the said intended marriage shall die before the said provision shall be paid, and the exercise of the said power of division, leaving lawful issue of his, her, or their bodies, the said issue shall have right to the share of such deceasing child or children, in the same manner as if such parent had received payment, or the same had become payable during the parent's life; and it shall be in the power of the said William Davidson to divide and apportion among the issue of the body of any child the share to which the parents of such issue, if surviving, would have been entitled.’ It was declared by the deed that these provisions in favour of the child or children of the marriage should be in full satisfaction to them of all legitim and rights of succession, or other legal rights competent to them through the death of their father, or the dissolution of the marriage. Mr Davidson died in 1859, survived by his wife and a daughter, Isabella Stevenson Davidson, his other children having predeceased him without leaving issue. Since the records in the present action were closed, Miss Isabella Stevenson Davidson has died, unmarried, and leaving a settlement, by which she assigned and disponed to her mother, who now claims in her place, her whole right under the antenuptial marriage-contract, and nominated her mother to be her executrix.

Mr Davidson left a trust-disposition and deed of settlement, dated 12th March 1845, with codicils, dated 24th September 1850 and 15th December 1859 respectively. These codicils deal with the residue of his estate; and, professing to proceed in exercising the powers of restriction contained in his marriage-contract, Dr Davidson thereby restricts the right of his daughter, Isabella Stevenson Davidson, and any other children he might have, to a liferent of the residue of his estate, and directs the fee to be divided among the issue of his daughter and of any other child he might have, per stirpes; and failing such issue, to be paid and given over to his sister Margaret Davidson or Neilson to the extent of one-half, and to the children of his sister Marion Davidson or Stalker to the extent of the remaining half. By the latter codicil a power is given to his daughter Isabella Stevenson Davidson, on her attaining the age of 30, and provided she had no issue then in life, to dispose of the residue of the estate by any mortis causa deed as she might think fit.

Miss Isabella Stevenson Davidson during her lifetime maintained, and her mother as representing her in the conjoined actions now maintains, that in virtue of the obligation contained in the marriage-contract, Miss Davidson, on surviving her father, became absolutely entitled, in virtue of the provision above quoted in the marriage-contract, to two-thirds of her father's estate, real and personal, after deduction of debts; and that, in the circumstances which occurred, her father had no power to deal gratuitously with this part of his estate. The claimant Isabella Neilson and others, on the other hand, who are amongst the parties favoured by the destination of the residue under Dr Davidson's deed of settlement and codicils, maintained that the testator was entitled to deal with his estate as he has done, and that they have no right to a half of the residue of this estate, the other half of which, in this view, belongs to the family of the late Mrs Stalker, who are said to be in America.