Scottish Court of Session Decisions

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Cite as: [1877] SLR 15_111, [1877] ScotLR 15_111

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SCOTTISH_SLR_Court_of_Session

Page: 111↓

Court of Session Inner House Second Division.

Tuesday, November 20. 1877.

15 SLR 111

Special Case—Low and Others.

Subject_1Provisions to Wives and Children
Subject_2Revocability of, where Postnuptial and no Children born.

Facts:

Three years after marriage a husband had executed and delivered a trust-deed for behoof of his wife and children, if any should be born of the marriage. Four years thereafter, when there were no children, the truster and his wife desired to terminate the trust, and have the proceeds realised— held that the trustees were not so entitled to pay the funds over to him on his and his wife's joint requisition although there was no issue of the marriage, and that the same rule applied as if the deed had been antenuptial.

Question ( per Lord Ormidale) whether the decision would have been the same in a case where there was no likelihood of children of the marriage.

Headnote:

Captain Low executed a trust-deed on 12th February 1875, by which he conveyed to himself, his wife, William Mitchell, S.S.G., and Charles Baxter, W.S., a sum of £400, and four insurance policies affecting his own life, in trust for the purposes therein stated. These purposes were the administration of the estate during the truster's life, and the distribution of it, in certain events, after his death among his wife and children, if he should have any. Captain Low delivered this trust-deed to Messrs Mitchell & Baxter, who, on behalf of themselves and the other trustees, and as agents for the trust, duly intimated the assignation of the insurance policies to the insurance companies, and invested the sum of £400 in certain securities specified in the deed. Mitchell & Baxter were agents of the trust, and held the securities in their hands, which were transferable by delivery. They paid the premiums of the insurance policies out of the interest of the £400.

The truster was born on 10th May 1845, and Mrs Low on 8th August 1849. They were married on 7th June 1873. Both thereafter being anxious to terminate the trust, desired the trustees to realise the securities and to pay the proceeds thereof and convey the policies to Captain Low. But Messrs Mitchell & Baxter, two of the trustees, were not satisfied that the trustees were legally entitled to accede to the request.

This Special Case was therefore presented, in which Captain and Mrs Low were the parties of the first part, and Messrs Mitchell & Baxter, as trustees, the parties of the second part. There had been no children of the marriage when the case was before the Court. The question submitted was—“Whether the trustees were entitled or bound to denude in favour of Mr Low upon the joint requisition of Mr and Mrs Low, and on receiving from them a full discharge of all their trust-actings and intromissions?”

Authorities cited— Murison v. Dick, February 10, 1854, 16 D. 529; Anderson v. Buchanan, June 3, 1837, 15 S. 1073; Fletcher Menzies, March 5, 1875, 2 R. 507; Smitten v. Tod, December 12, 1849, 2 D. 226; Thornhill v. Macpherson, January 20, 1841, 3 D. 394.

At advising—

Judgment:

Lord Justice-Clerk—Very frequently there occur cases under this category of law of a very perplexing character, but I do not think that this is one of them—[ His Lordship narrated the facts).

Now, this deed was executed three years after the marriage, and it purports to be one for behoof of the truster's wife and children. Apparently it is a trust substantially of a mortis causa character, but with the peculiarity of being delivered during the truster's lifetime. A postnuptial contract it is not, but it is a postnuptial provision for a wife and children in all respects of a reasonable character, and therefore I regard it as onerous. The question then comes to be, Whether Mr Low can revoke this deed with the consent of one of the parties in whose interest it was executed? No doubt at present there are not any children born of the marriage, still Mrs Low is only one of the parties to the deed, even supposing she were able herself to give an efficient consent to the revocation. The husband and wife in a case such as the present cannot by combining together frustrate the jus quæsitum of children, whether born or unborn. There is not any authority exactly bearing on the question of unborn children, but the principle is clearly recognised.

On the whole, the case appears to be a clear one, and although it is quite true that in most cases such questions arise under an antenuptial contract of marriage, yet I do not see that any difference in principle can be made out where the deed is postnuptial. I am accordingly for answering the question proposed in the negative.

Lord Ormidale—I am of the same opinion, although I should wish to reserve any expression of my views in a case where the husband and wife were advanced in years and not likely to have any children; but that is not the case here at all. The provision made by Mr Low is a most rational one, and that disposes of one line of objection.

Page: 112↓

It is quite true that hitherto upon this very point there has not been any precise decision, but the sooner there is a decision the better. It would rather seem to me that a postnuptial deed of this nature is, if possible, more indefeasible than an antenuptial one, for in the latter ease the marriage may never come off, and then there are only two persons having a possible interest, whereas in the former case the marriage has already taken place and the position of parties is beyond recall. The trustees here could not have given up the funds without some authority, and they have therefore acted most prudently in coming to the Court to obtain its opinion and judgment. I do not think the wife's consent would empower them to pay over this money to Mr Low, and I am therefore of opinion with your Lordship in the chair that the question must be answered in the negative.

Lord Gifford—I concur in the opinions expressed by your Lordships. The question argued to the Court was, Whether this postnuptial deed was to have the same force as an antenuptial deed of the same nature would have possessed?

It was conceded (indeed upon the authorities it could scarcely have been denied) that an antenuptial deed could not in these circumstances have been revoked, and I think that all the considerations which weigh with the Court in refusing to allow a wife to defeat her own interests, weigh equally in the case of postnuptial and antenuptial provisions.

The Court therefore answered the question in the negative.

Counsel:

Counsel for First Parties— A. Gibson. Agents— Mitchell & Baxter, W.S.

Counsel for Second Parties— Taylor Innes.
1877