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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Melville v. Davidson and Others (Melville's Trustees) [1879] ScotLR 16_742 (15 July 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0742.html
Cite as: [1879] ScotLR 16_742, [1879] SLR 16_742
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SCOTTISH_SLR_Court_of_Session
Page: 742↓
Court of Session Inner House Second Division.
v.
Facts:
A husband and wife, there being no antenuptial contract, executed a mutual trust-disposition and settlement of their “whole estate … presently belonging and addebted to us … or which shall belong or be addebted to us at the time of our decease,” in favour of trustees, for themselves and the survivor in liferent, and the issue of the marriage in fee. The whole estate save a fund of £400 (as to which jus mariti and rights of administration were expressly excluded) belonged to the husband. Held, on the death of the wife, that the mutual deed was revocable in so far as the husband's estate was concerned, the conveyance of it having been truly a donation by the husband, and neither remuneratory nor a provision for the issue of the marriage.
This was a Special Case presented for the opinion of the Court by (1) Captain William G. B. Melville, Fraserburgh, and (2) Sylvester Davidson and others, trustees under a trust-disposition and settlement executed by Captain Melville and his wife Mrs Sarah Noble or Melville. On September 27, 1875, Captain and Mrs Melville had executed a trust-disposition and settlement by which they conveyed to trustees “all and sundry lands and heritages, ships and shares of ships, and in general the whole estate, heritable and moveable, real and personal, of what kind or nature soever, or wheresoever situated, presently belonging and addebted to us, or to either of us, or which shall belong or be addebted to us at the time of our decease.” The purposes of the trust were principally, after payment of debts, funeral expenses, and the expenses of the trust, that the survivor of the spouses should have the liferent of the whole estate, terminable on his or her second marriage, and that on the death or second marriage of the survivor the whole estate should be divisible equally, share and share alike, among the children of their marriage.
The seventh purpose was—“Declaring further, and hereby specially providing, that the principal sum of £400 sterling which accrued to the said Sarah Noble or Melville through and at the death of her father William Noble, late flesher and shipowner, Fraserburgh, having been handed over by her to the said William Gordon Burnett Melville to be invested by him and in his name in shares of the schooner or vessel ‘George Noble’ of Fraserburgh, whereof he is also master, the said sum, and all profits accruing therefrom from and after the date of these presents, shall be set apart as a special and separate fund for behoof of our said family or children of our present marriage, and paid to them share and share alike at our death, or upon the second marriage of either of us, as before provided for, and that to the entire exclusion of children or family of any second marriage of either of us.”
Mrs Melville died on 13th April 1878 survived by her husband. There were two children of their marriage, aged respectively five and two years.
The property consisted of £1400 in cash and heritable subjects yielding about £50 per annum. The whole of this belonged to Captain Melville, with the exception of the sum of £400 dealt with in the seventh purpose, which was the separate property of Mrs Melville, derived from the estate of her father, under whose settlement the jus mariti and right of administration of her husband was expressly excluded. Captain Melville on August 20,1878, executed a deed of revocation of
Page: 743↓
the mutual trust-disposition and settlement, by which he recalled the whole of its provisions, except so far as regarded these in the seventh purpose, and redisponed to himself and his heirs and successors the heritable property. The heritable subjects were originally purchased in 1871 with Captain Melville's funds. He was then at sea, and the title was taken, without any instructions from him, in the name of Mrs Melville and her heirs and assignees. While the title so stood, part of the subjects so acquired were sold, Mrs Melville's name appearing as seller; and thereafter, by disposition dated 25th March 1875 she disponed the remainder to herself and husband in conjunct fee and liferent, and to the longest liver of them, and the children of their marriage equally in fee. The price of the portion sold was expended in building a house on the rest of the ground.
The questions submitted to the Court were in these terms—“(1) Are the second parties entitled to demand from the first party a conveyance of the property and estate, heritable and moveable, falling under the said mutual trust—disposition and settlement? (2) Are the provisions contained in the said mutual trust-disposition and settlement revocable by the first party in so far as they relate to his separate property, heritable and moveable? (3) Does the deed of revocation effectually recall the provisions in so far as they relate to the said property, and relieve the trustees from responsibility thereanent?”
Argued for the first parties—This was a revocable deed, being really a donation inter virum et uxorem, and in similar cases the Court had held that power of revocation existed. There was no consideration save as regarded the £400, and it was not proposed to touch that. The whole fund was Captain Melville's from the outset, and he was receiving nothing for what he gave.
Authorities— Mitchell v. Mitchell's Trs., June 5, i 1877, 4 R. 800; Gibson's Trs. v. Gibson, June 8, 1877, 4 R. 867; Stiven v. Brown's Trs., Jan. 10, 1873, 11 Macph. 262.
Argued for the second parties—This was truly an onerous deed in favour of the children of the marriage. The interests of the children must be regarded as paramount. The wife had purchased by this deed a succession for them.
Authorities— Hepburn v. Brown, 1814, 2 Dow's Apps. 342; Kidd v. Kidds, Dec. 10, 1863, 2 Macph. 227.
At advising—
The marriage was dissolved by the death of Mrs Melville on 13th April 1878, survived by her husband Captain Melville and by two children of the marriage, who are in pupillarity. In August 1878 Captain Melville, by a deed dated 20th August 1878, revoked the mutual settlement between him and Mrs Melville, excepting as to a sum of £400, which was Mrs Melville's exclusive property; and the question now arises, whether Captain Melville was entitled so to revoke the mutual settlement, and what are the rights and duties of the trustees named in the mutual settlement under which they are now called upon to act?
Questions regarding the revocability of mutual settlements are often attended with great difficulty, and involve considerations of nicety and importance depending upon the circumstances of each particular case. The present case, however, appears to me to be solved by the application of the rule of law that donations between husband and wife are revocable during the life of the granter, even after the dissolution of the marriage and the death of the spouse to whom the donation is made. I am of opinion that the provisions granted by Captain Melville in the mutual settlement were substantially donations made by him in favour of his wife, that they are revocable by him even after his wife's death, and that they have been effectually revoked by the deed of revocation of 20th August 1878.
There was no antenuptial marriage settlement between the spouses, and therefore their rights were governed by the rules of common law. The husband was bound to make a reasonable provision for his wife in case of her widowhood, but if he gave her anything beyond this it would be considered in law a donation, and would be revocable by him at any time of his life.
Now, by the deed in question he gives the wife in the event of her surviving him a liferent of the whole estate, and looking to the very moderate amount of the estate in question, I think this would have been held reasonable and proper. But no question has arisen regarding this, for the wife has predeceased the husband, and it is the restriction of the husband's rights as surviving spouse that is now complained of as unreasonable and revocable. It is contended that by the mutual settlement the husband is divested and denuded of his whole estate, and bound to hand it over to the trustees named in the mutual settlement, that he is thereafter only to enjoy a liferent of his own estate, and that this liferent is to be forfeited if he should enter into a second marriage. I understand his present age is about forty-five.
I am of opinion that this restriction of Captain Melville's right over an estate which was absolutely his own can only be regarded as a gratuitous donation to his wife or a gift at her instance undelivered, and as such is revocable by the husband. In no sense can it be said that the mutual settlement is remuneratory. The husband takes nothing under it from the wife as a consideration for giving up the capital of his whole estate. He receives nothing in return. The wife's whole separate property, consisting of £400, is secured to the children of the marriage. Regarding this sum there is no dispute, and in this sum Captain Melville claims no right, but he very naturally objects to hand over his whole estate to the
Page: 744↓
It was ingeniously urged that although a donation to the wife herself might be revoked, it was otherwise with a provision made by Captain Melville in the mutual settlement for the children of the marriage. It was said the wife had purchased a succession for them by the mutual deed which the husband could not revoke even for behoof of any children which he might have by a second marriage. I cannot so regard the deed. The children of the marriage are no parties thereto, and in so far as they are concerned I think the spouses must be regarded as merely making testamentary provisions, each spouse conveying for behoof of the children merely his or her own estate. Logically the argument for the second party would come to this, that every penny Captain Melville may hereafter earn, and everything that he may hereafter succeed to, must be instantly handed over to the trustees for behoof of the children of his late marriage, for the mutual settlement conveys to the trustees everything that may belong to either of the spouses at their respective deaths, and although this view was hardly pressed in argument to its full extent, there was some difficulty and inconsistency felt in restricting the claim to the estate which might belong to the husband at the dissolution of the marriage. I am of opinion, however, that there is no ground at all for the contention that by the deed the wife purchased a succession to the children of the marriage. She really purchased nothing. She paid no price, and she gave no consideration for a sacrifice so great on the part of the husband—a sacrifice which might impair his wellbeing and hamper him all his future life.
I am of opinion, therefore, that all that the trustees, the second parties to the case, can claim under the mutual settlement is the £400 mentioned in the seventh purpose, which they will administer for behoof of the two children of the marriage between Captain Melville and his late spouse.
The Court therefore answered the first question in the negative, and the second and third in the affirmative.
Counsel for First Party— Pearson. Agents— Pearson, Robertson, & Finlay, W.S.
Counsel for Second Parties— Low. Agents— Menzies, Coventry, & Soote, W.S.