Scottish Court of Session Decisions

This was a Special Case presented by William Poison and others, trustees under an antenuptial contract of marriage, dated in 1862, between the Rev. D. M'Lean and Miss Georgina Mollison Allardice, as parties of the first part; and Mrs Allardice or M'Lean, widow of the Rev. D. M'Lean, who predeceased his wife on 28th May 1876, and D. W. Allardice, her factor, of the second part. No children were born of the marriage.

The clause in the marriage-contract under which the questions stated in the case arose was as follows:—“In the event of the said Daniel M'Lean predeceasing the said Georgina Mollison Allardice, the said means and estate conveyed by her as aforesaid shall, to the extent of one-half thereof, as such half shall be valued, ascertained, and fixed by the said trustees, be freed from and disencumbered of the trust hereby created, and paid or conveyed by the said trustees or their foresaids absolutely to the said Georgina Mollison Allardice, and the other half of the said means and estate, together with the foresaid sum of £500 contained in the policy of assurance above mentioned, and whole bonuses and additions thereto, shall be held and applied by the said trustees and their foresaids for behoof of the said Georgina Mollison Allardice in liferent, for her liferent use allenarly, and the child or children of the said intended marriage, and the survivors or survivor of them, the issue of any predeceasing

Page: 384↓

child nevertheless taking the share or shares which would have belonged or accrued to his, her, or their parent if such parent had been alive, whom failing for behoof of the said Georgina Mollison Allardice's nearest heirs and assignees in fee.”

During the subsistence of the marriage the trustees had paid the annual income of Mrs M'Lean's estate to the spouses in terms of the contract of marriage. After Mr M'Lean's death the parties of the first part received payment of the principal sum in life policy on his life, with bonus additions thereto, amounting to £603, 15s, This, with £1022, 3s. 9d., conveyed by Mrs M'Lean to the trustees, formed the whole estate—in all, £1625, 18s. 9d.

At her husband's death Mrs M'Lean claimed (1) the one-half of the estate which had been conveyed by her; (2) the other half of the estate conveyed by her, together with the proceeds of the policy.

The latter claim the trustees resisted.

The questions of law submitted to the Court were as follows:—“(1) Are the parties hereto of the first part entitled in a due administration of their trust to pay to Mrs Georgina Mollison Allardice or M'Lean, a party hereto of the second part, the one-half of the means and estate conveyed by her by the said contract of marriage, which they are thereby directed in the events which have happened to hold and apply for behoof of the said Georgina Mollison Allardice or M'Lean's nearest heirs and assignees in fee? (2) Are the parties hereto of the first part entitled in a due administration of their trust to pay to the said Mrs Georgina Mollison Allardice or M'Lean, one of the parties hereto of the second part, the proceeds of the said policy of assurance on the life of the said Keverend Daniel M'Lean?”

Authorities quoted for the first parties— Pursell v. Elder, June 13, 1865, 3 Macph. (H. of L.) 59; Cumstie v. Cumstie's Trustees, June 30, 1876, 3 R. 921; Martin v. Bannatyne, March 8, 1861, 23 D. 705.

At advising—