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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Reid (M'Walter's Trustee) and M'Walter [1878] ScotLR 15_380 (12 February 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0380.html
Cite as: [1878] ScotLR 15_380, [1878] SLR 15_380
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SCOTTISH_SLR_Court_of_Session
Page: 380↓
Court of Session Inner House Second Division.
Facts:
A wife was in right of an annuity to which she had succeeded before her marriage, and which continued to be paid to her on her own receipt. On her husband's sequestration she intimated a claim for payment of the fund under the 16th section of the Conjugal Rights Act 1861, before any termly payments, fell due or were attached by the trustee on the estate. In a question with the trustee— held (1) that the fund itself was heritable, and did not fall under the jus mariti, the termly payments alone being moveable; and (2) that as regarded the termly payments the claim under the Conjugal Rights Act had been timeously intimated, and fell to be given effect to.
Observed ( per Lord Gifford) that in such a case the wife's claim will subsist for future payments so long as the circumstances of the spouses remain the same.
This case was decided on the same day with that of Ferguson v. Jack, ante p. 343.
The estates of Robert M'Walter, builder in Glasgow, were sequestrated on 27th April 1877, and on 11th May following Robert Reid, accountant there, the first party to this case, was confirmed trustee on the sequestrated estate. Ann Dougall or M'Walter, the second party, was Robert M'Walter's wife. They were married on 11th July 1873. No antenuptial or postnuptial marriage-contract had been entered into between them. By the trust-disposition and settlement of George Barker, who died on 2d December 1869, his trustees were directed to pay to the second party, then Ann Dougall, a free liferent annuity of £20, by equal portions, at Whitsunday and Martinmas, and interest from each respective term until payment. This annuity was not excluded by the settlement from her husband's jus mariti and right of administration, nor protected from the diligence of his creditors. After Mr Barker's death, the trustees, acting under the trust-disposition and settlement, paid the annuity to the second party half-yearly as provided, the first payment being made at Whitsunday 1870, and the last at Whitsunday 1877, always upon her own receipt alone. On 18th May 1877, an intimation was made on behalf of the trustee in the sequestration to the trustees' agents, that the trustee claimed the annuity as part of the bankrupt estate. Upon 30th May 1877 the agent for the second party, as instructed by her, wrote to the agents for the trustees that she claimed the annuity as a reasonable provision for her support and maintenance,
_________________ Footnote _________________
* Decided Feb. 5, 1878.
Page: 381↓
The 16th section of the “Conjugal Rights (Scotland) Amendment Act 1861” was as follows:—“When a married woman succeeds to property, or acquires right to it by donation, bequest, or by 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 therefor be made 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: Provided always, that no claim for such provision shall be competent to the wife if before it be made by her the husband or his assignee or disponee shall have obtained complete and lawful possession of the property, or, in the case of a creditor of the husband, where he has before such claim is made by the wife attached the property by decree of adjudication or arrestment, and followed up the said arrestment by obtaining thereon decree of furthcoming, or has poinded and carried through and reported a sale thereof.”
In these circumstances, the opinion and judgment of the Court was requested upon the following question of law “Is the said Ann Dougall or M'Walter entitled to the said annuity or any portion thereof, and, if so, what portion, as a reasonable provision for her support and maintenance, under the 16th section of the Conjugal Rights (Scotland) Amendment Act 1861?”
Authorities— Hill v. Hill, December 21, 1872, 11 Macph. 247; Fraser on Husband and Wife, vol. i. p. 740 (new edition); Bell's Principles, sec. 1480.
At advising—
I am of opinion (1) that the annuity itself is heritable, and does not fall under the jus mariti, which attaches only to the termly payments as they arise. (2) That although the right to the annuity was acquired before the marriage, the termly payments fall under the 16th section of the Conjugal Rights Act. This was expressly decided in the case of Taylor v. Taylor, June 23, 1871, 9 Macph. 893, and cannot now be questioned. The period of time to be regarded is not so much the acquisition of the radical right as the time when the jus mariti attached. (3) There was a sufficient claim made by the wife in May 1877 to bring the future termly payments under the 16th section of the Conjugal Rights Act. And (4) I am of opinion that the amount of the annuity does not exceed a reasonable provision, and that the second party is not bound to refund the payment made at Whitsunday 1877, before the amount was claimed by the trustee. Equitable considerations might lead to this result in the case of an alimentary annuity, as this in effect is, even without the necessity of directly deciding on the nature of the trustee's title.
I am of opinion that the annuity of £20, not being an accessory to or the mere accruing interest of any specified capital sum, but being a proper liferent annuity dependent only on the life of Mrs M'Walter, is a right having a tract of future time— tractum futuri temporis—and therefore as in a question with her husband it is heritable and does not fall under her husband's jus mariti.
I speak of course of the right itself—the right to the annuity itself—for I think that each half-year's termly payment of the annuity would, as it becomes due to the wife, fall under the husband's right of jus mariti, that right not being excluded by the terms of Mr Barker's will, and the result is, that while Mr Reid, as the trustee on the husband's sequestrated estate, cannot claim the right of annuity itself—that is, the right to draw it in all future time—yet he will be entitled to claim each half-year's annuity as it falls due while
Page: 382↓
In short, I am of opinion that this annuity is, in questions between husband and wife, in precisely the same position as the rents of an heritable estate or subjects belonging to the wife would have been. The husband has no right to claim or to dispose of his wife's heritable estate, but if his jus mariti is not excluded therefrom he can claim each half-year's rents of the estate as they become current or due. He can only claim the annual accruing proceeds, which of course are moveable as they accrue.
The next question is, At what time must the wife claim a provision for her maintenance and support out of the annuity or out of each term's payment of the annuity, so as to entitle her to receive such provision in terms of the 16th section of the Conjugal Rights Act of 1861? I am of opinion on this matter that each half-year's payment of the annuity as it falls due (and by the settlement it is payable in advance) is to be regarded as a separate fund out of which the wife may claim a provision at any time before it falls due, or before it is actually paid to her husband or attached by decree of furthcoming by her husband's creditors. I do not mean that a separate claim is necessary by the wife every half-year, as if each half-year's payment were a separate succession. I think she may claim once for all, and that such claim will subsist for future payments so long as the circumstances of the spouses remain the same, but in order to make the claim effectual as to any specified half-year's annuity, the claim must be made before such half-year's annuity has been reduced into possession by the husband, and before any of his creditors have obtained therefor decree of furthcoming. A completed and reported poinding and sale, which is the other alternative of the statute, is not applicable to a money payment like a half-year's annuity.
Applying these principles to the facts of the present case, there is no dispute as to the half-year's annuity payable in advance at Whitsunday 1877 or as to any previous payments. These payments have all been made to the wife herself and I suppose have been spent by her for her maintenance. The first half-year's annuity which the trustee in the sequestration claims is that falling due in advance at Martinmas 1877, but by that time, as I understand it, the present Special Case had been adjusted, and the wife had intimated her statutory claim for a provision, and as I think this claim was in time if it was made before the term's annuity fell due, I think the wife's claim for a provision is effectual under the statute, and this apart altogether from the fact or from the date of the husband's sequestration.
In this way, I think it is unnecessary to decide in this case the precise legal effect of the husband's sequestration—I mean whether the husband's sequestration is, in questions under the Conjugal Rights Act, equivalent to a decree of furthcoming or a completed and reported poinding and sale by a creditor of the husband. But, as I had occasion to say in the previous case which we decided this morning ( Ferguson Jack, ante, p. 343), I am inclined to think that a mercantile sequestration has not the effect contended for. The declaration in the Bankrupt Act that the first deliverance in a sequestration, when sequestration is awarded, shall be equivalent to an arrestment and furthcoming, to a poinding and sale, to an intimated assignation, and so on, appears to me to be merely to give the trustee a complete title in the sequestration for the purposes of distribution, and cannot, I think, be held as equivalent to the special completed diligence which the Conjugal Rights Act expressly requires as the only means except actual payment which will exclude the wife's equitable claim for a maintenance out of her own funds.
The only remaining question is, Whether the wife's statutory claim for maintenance exceeds or exhausts the annuity in question? and I am of opinion that it does. The wife has no other means of maintenance for herself and two children, who are delicate and require care and medical attendance. £20 a-year is a very small sum to meet the claims upon it, and therefore I am for answering the question put in this Special Case in the affirmative, and to the effect that the wife, the second party to the case, is entitled to the whole of the annuity in question as a separate provision for her maintenance and support.
The Court accordingly found that Mrs Ann Dougall or M'Walter, the party of the second part, was entitled to draw, term by term, the whole of the annuity of twenty-pounds referred to in the case, as a reasonable provision for her support and maintenance, under the 16th section of the ‘Conjugal Rights (Scotland) Amendment Act 1861;’ and decerned accordingly
Counsel for First Party— Harper. Agents— Hill & Ferguson, W.S.
Counsel for Second Party— H. J. Moncreiff. Agents— J. & J. Ross, W.S.