Scottish Court of Session Decisions

This was an action of reduction at the instance of Thomas Robertson and spouse against Alexander Moore, trustee upon his sequestrated estate, and the trustees under an antenuptial contract of marriage between him and his wife, dated 22d April 1873. By that deed Thomas Robertson bound himself to pay to his wife, in case she should survive him, a free liferent annuity of £200, to be restricted in the event of her entering into a second marriage to £100—which liferent annuity was further declared to be purely alimentary. In security of that annuity Thomas Robertson under the antenuptial contract conveyed to the trustees, inter alia, two ground-annuals of £45, 11s. 8d. and £55, 5s. 1 1 2 d. payable from two steadings of ground fronting the Great Western Road, Glasgow, binding himself to execute a more formal and valid disposition of them so soon as he obtained a title; but it was provided in the deed that the trustees were to hold the ground-annuals for behoof of the spouses during their joint lives, for their liferent alimentary use allenarly, and after the death of the wife, if she predeceased, for the husband in liferent for his liferent alimentary use allenarly. For the two ground-annuals conveyed in security as above narrated there were afterwards substituted two other ground-annuals of the yearly value of £31, 17s. 8d. and £55, 5s. l 1 2 d., and the marriage-contract trustees were infeft upon a conveyance of these.

Thomas Robertson having become bankrupt, the trustee upon his sequestrated estate brought an action against him and his spouse and their marriage-contract trustees, asking for declarator that under his act and warrant of confirmation there was transferred to him “the sole and exclusive right to all and every payment” of the ground-annuals above-mentioned. The marriage-contract trustees declined to defend that action unless they were supplied by the other defenders with funds, and decree was granted in absence. Robertson and his spouse now sought reduction of the decree in that action.

The pursuers pleaded, inter alia,—“(2) The fund forming the said provision not forming part of the pursuer Thomas Robertson's estate, is not affected by his sequestration.”

The defenders pleaded, inter alia,—“(4) The bankrupt being entitled to the benefit of the ground-annuals in question during his lifetime, his declaration in the marriage-contract that the same shall be alimentary is ineffectual against creditors. (5) The provisions of the marriage-contract relative to the disposal of the bankrupt's ground-annuals during his lifetime being invalid, and in fraud and to the hurt and prejudice of his creditors, the defender is entitled to the decree which he has obtained.”