Scottish Court of Session Decisions

This was a Special Case submitted for the opinion and judgment of the Court by the widow and the trustees of the late Captain James Stirling of Glentyan, R.N. On the marriage of Captain Stirling and Mrs Stirling in 1844, he became bound by ante-nuptial contract to pay her a jointure of £600 a-year for her life, in the event of her surviving him, but under a condition that the income arising from £5000 then belonging to her should be imputed pro tanto in the payment of the jointure The contract contained a further liferent provision to Mrs Stirling of the house and grounds of Glentyan, and furniture of the house. The £5000 was conveyed of consent to the marriage-contract trustees, for payment of the interest thereon to her during life, the capital to be held by them for the Captain if he should survive her and should there be no issue of the marriage, who were otherwise to get it. There was no issue, and Captain Stirling died on 23d December last, and at his death the whole sum of £5000 formed a debt due by him to the marriage-contract trustees, and secured partly on his estate. By a trust-settlement of 30th December 1870, the Captain left Mrs Stirling the option of taking for life the whole income of his trust-estate, and of continuing to reside at Glentyan,

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instead of taking the marriage-contract provisions in her favour; and by a codicil of June 1872 she was given the further option, in the event of her leaving Glentyan, of accepting other special provisions made thereunder, in which case she must relinquish her claim to the general liferent of her husband's trust-estate, and to any other provisions from that estate beyond those specially set forth in the codicil. In these circumstances, a question arose between Mrs Stirling and the trustees under the settlement of December 1870, as to the extent of her rights under the third alternative, she contending that she was entitled to the interest of the £5000 in question independently of the codicil provisions, and the trustees maintaining that, as the money had been paid into Captain Stirling's hands, and was in point of fact merged in or mixed up with his estate at the time of the execution of the codicil, and he himself had the sole beneficial right to the capital of that sum, subject only to her liferent right to the interest, the declaration in the codicil was intended to exclude any claim on her part to receive the interest of the marriage trust-fund from the Captain's trust-estate. The question put to the Court was—Whether the trustees were bound, in the event specified in the codicil of June 1872, to pay Mrs Stirling, or the marriage-contract trustees for her behoof, the interest of £5000 over and above payment to her of the special provisions made for her by the codicil?