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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ritchie v. Ross and Others [1874] ScotLR 11_569 (5 June 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0569.html
Cite as: [1874] ScotLR 11_569, [1874] SLR 11_569
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SCOTTISH_SLR_Court_of_Session
Page: 569↓
Court of Session Inner House First Division.
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v.
Facts:
A husband by an irrevocable and delivered trust-disposition and settlement provided an annuity for his wife (from whom he was living separate on account of her intemperate habits) in case of his death. Six weeks afterwards he brought an action of divorce on the ground of adultery against his wife, and obtained final decree. Held that by this decree the said annuity was forfeited.
This action was brought by Mrs Christian Mary Carmichael or Ritchie against Sir David Ross and others, the trustees and executors nominate of the deceased George Ritchie of Hill of Ruthven, in the following circumstances.
The pursuer was married to Mr Ritchie in 1852, and about 1868 they were separated on account of the intemperate habits of the pursuer. In 1870 the pursuer brought an action of adherence and aliment against her husband, which was compromised, and on 22d November 1871 Mr Ritchie brought an action of divorce on the ground of adultery against the pursuer. In this action of divorce the Lord Ordinary granted decree on 28th February 1872, and the pursuer reclaimed. Mr Ritchie died on 27th June 1872. On 27th May 1874 the First Division adhered to the interlocutor of the Lord Ordinary granting the divorce, the trustees of Mr Ritchie having been sisted as respondents in the reclaiming note.
On 6th October 1871 Mr Ritchie had executed a trust-disposition and settlement in favour of Sir David Ross and others, the defenders, to whom he disponed his heritable and part of his moveable property for the purposes therein set forth. The third purpose of the deed was as follows:—“Thirdly, in respect that I have agreed to pay and will myself continue to pay during my life to Mrs Christian Mary Carmichael or Ritchie, my wife, so long as we live separately as at present, the sum of two hundred pounds sterling yearly, …. and I wish the same to the extent aftermentioned to be continued to her after my death so long as she survives me. I direct and appoint my said trustees after my death, from the dividends of the stocks hereinafter assigned and conveyed to them, to pay to the said Mrs Christian Mary Carmichael or Ritchie an annuity of one hundred and fifty pounds sterling, …. and I further direct my said trustees to allow her the sum of thirty pounds sterling for mournings on the occasion of my death; and further, as it is my wish that the said Mrs Christian Mary Carmichael or Ritchie shall not return to the Hill of Ruthven after my death, I hereby direct my trustees not to permit her to reside there, and to take all steps necessary to secure this; which annuity in favour of my said wife shall be in lieu of all terce of lands, legal share of moveables, and everything that she jure relictæ or otherwise could ask, claim, or crave of me, my heirs, executors, or representatives through my death in case she shall survive me. And which annuity I consider to be an ample aliment for her in her position and habits of life, and that a larger income would not be for her advantage, and which provision in favour of my said wife is hereby declared to be purely alimentary, and not to be assigned by her or attachable by her creditors.” The said deed was rendered on 24th October 1871. Mr Ritchie had also, on 26th October 1871, executed a testament disposing of the rest of his moveable property, on the narrative that by the trust disposition he had already divested himself
Page: 570↓
of all right to or control over his heritable and part of his moveable property. In these circumstances, Mrs Ritchie brought the present action, which concluded for payment of £30 for mournings, and an annuity of £150 in terms of Mr Ritchie's trust disposition and settlement, or for payment of £5000 due to her as widow of the said George Ritchie.
The pursuer pleaded—In virtue of the deceased George Ritchie's trust disposition, or otherwise in respect of her jus relictae, the pursuer is entitled to decree in terms of the conclusions of the summons.
The defenders pleaded—The action is excluded by the decree of divorce obtained by the late Geerge Ritchie against the pursuer, and the defenders should therefore be assoilzied, with expenses.
The Lord Ordinary, in respect of the decree of divorce, dismissed the action.
The pursuer appealed and argued—The trust settlement of 7th October 1871 was an irrevocable deed and not of the nature of a marriage contract or a deed propter nuptias. The deed, or at least that part of it containing provisions for the pursuer, was rather in the position of an irrevocable donation from the husband to the wife stanti matrimonio. Such a provision was not touched by the decree of divorce.
Argued for the defender—The provisions in the deed were given to the pursuer as the wife of the granter—there was nothing to shew that when the deed was executed Mr Ritchie knew of his wife's adultery or contemplated a divorce. Nothing was more clearly settled than that a wife divorced for adultery loses all her provisions, just as if she were dead. The provisions in this trust deed were made for the pursuer in the character of Mr Ritchie's wife, and therefore came under that principle. The fact that the deed was irrevocable made no difference.
Authorities—Stair, i. 4, 20; Ersk. i. 6, 46; Turnbull v. Tawse, April 15, 1825, 1 W. & S. 80; Smelton v. Tod, Dec. 12, 1839, 2 D. 125; Napier v. Orr, 18th Nov. 1864, 3 Macph. 57; Thomson v. Dick, 10th Feb. 1854, 16 D. 529; Harvey v. Farquhar, Feb. 22, 1872, 10 Macph. H. L. 26; Beattie v. Johnston, Feb. 5, 1867, 5 Macph. 340 and 6 Macph. 333; Dunlop's Trustees v. Dunlop, Mar. 24, 1865, 3 Macph. 758; Innerwick, March 1589, M. 529; Thom v. Thom, June 11, 1852, 14 D. 861.
At advising—
Lord President—This is an action at the instance of Mrs Ritchie, wife of the late Mr George Ritchie, concluding for payment of an annuity of £150 settled upon her by her late husband by a trust-deed inter vivos, executed by him before his death; or alternatively, for payment of £5000, or such other sum as she may be found legally entitled to as widow of her said husband. The defence is, that the pursuer is divorced, and has therefore forfeited all her rights, conventional or legal.
The circumstances of the case are peculiar. Mr and Mrs Ritchie were married so far back as 1852, but as it turned out that the habits of Mrs Ritchie were not of the best, a separation occurred—although at what precise date does not appear. In March 1870, however, Mrs Ritchie raised an action of adherence and aliment, and an arrangement was come to by which Mr Ritchie agreed to pay her an annuity of £300 so long as she remained separate from him. This arrangement received the sanction of Lord Gifford, before whom the case depended.
After this, Mr Ritchie executed two deeds. First, upon 6th October 1871, he conveyed the bulk of his estate to trustees by an irrevocable deed, which was delivered. Afterwards, on the 26th of the same month, Mr Ritchie made a will which seems to have simply disponed such moveable property as had not been included in the former deed. This latter deed, however, does not bear on the present question.
On 22d November 1871 Mr Ritchie raised an action of divorce on the ground of adultery against his wife, and upon 28th February 1872 obtained decree of divorce from the Lord Ordinary. That judgment was reclaimed against by the wife, but before the reclaiming-note was heard the husband died, and the case was dropped from the roll. Last March, however, the trustees of Mr Ritchie were sisted as respondents in the reclaiming note, and on 27th May we adhered to the judgment of the Lord Ordinary.
These are the circumstances in which Mrs Ritchie claims the provisions in her favour contained in the deed of 1871. At that date she was Mr Ritchie's wife, and the annuity was settled upon her as his wife. The terms of the third purpose of the deed are—[ His Lordship then read the third purpose of the trust-deed, quoted above].
Now, it is impossible to read that provision without seeing that the settlement was upon Mr Ritchie's wife as his wife, and in fulfilment of his legal and moral obligations to provide for his widow after his death.
The rule of law is clear, that when a woman is divorced for adultery she cannot claim any provision which is made for her as a wife, or in the prospect of viduity. The wife divorced for adultery is in the eye of the law in the same position as if she were dead. If she were so she could not claim this annuity, so the rule of law seems directly applicable to this case.
It is unnecessary to add that the legal provisions claimed alternatively in the summons are in the same position.
It is quite clear, in the third place, that the pursuer has no right to the sums contained in the alternative conclusions of the summons.
As to the annuity of £150, it is equally clear that she cannot claim that unless it appears that Mr Ritchie meant her to have that provision notwithstanding any decree of divorce which he might obtain. But in the trust-deed it is impossible to find any indication of such intention. Mr Ritchie may have intended his wife to have the provision even after divorce, but there is nothing in the deed to lead to such an inference, and the deed is all we have to go upon.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel on the reclaiming note for the pursuer Mrs Christina Mary Carmichael or Ritchie, against Lord
Page: 571↓
Mure's interlocutor dated 22d October 1873, Recal the said interlocutor; sustain the defences; assoilzie the defenders, and decern.”
Counsel for the Pursuer— C. Smith, A. J. Young. Agent— Thomas Lawson, S.S.C.
Counsel for the Defenders— Fraser. Agent— John Galletly, S.S.C.