Scottish Court of Session Decisions

By contract of marriage between William Wardlaw and Margaret Richardson, dated 11th November 1822 and recorded 23d September 1870, Mr Wardlaw bound himself, his heirs, executors, and successors, “to provide the one-half of the whole lands, heritages, sums of money, and other funds that he shall happen to conquest and acquire during the present intended marriage to the foresaid Margaret Richardson, his promised spouse, in liferent for her liferent use allenarly, in case she shall happen to survive him, and to the children, one or more, to be procreated of this marriage in fee, and that by vesting the same in the persons of the trustees after named, and in the terms and for the ends, uses, and purposes after specified; and for ascertaining the extent of the said conquest, it is hereby agreed that the same shall comprehend and extend to all and whatever estate, heritable and moveable, belonging or owing to the said William Wardlaw at the dissolution of the marriage, whether the same has accresced by purchase, donation, or succession, after deduction of the debts due by him.” He also provided his household furniture to his intended spouse in case she should survive him, and that provision was accepted by her in full of her legal claims. Mrs Richardson on her part disponed, assigned, conveyed, and made over to and in favour of certain trustees, “but in trust for behoof of the said William Wardlaw and Margaret Richardson in conjunct fee and liferent, for the liferent use allenarly of the said William Wardlaw, and exclusive of the jus mariti or right of administration of the said William Wardlaw, and for the use and behoof of the children to be procreated betwixt the said William Wardlaw and Margaret Richardson in fee, and that in such proportions as the said William Wardlaw shall appoint by a writing under his hand, which failing, equally among them, the said children, share and share alike, all and sundry whatsoever lands, heritages, sums of money, and other funds or effects, heritable or moveable, presently owing and belonging, or which she the said Margaret Richardson may succeed to or acquire in any manner of way, and particularly, without prejudice to the said generality, the sum of £900 sterling presently owing and belonging to her in her own proper right, with the interest due thereon; and the said William Wardlaw hereby renounces his jus mariti, and all right or power of administration whatever competent to him in or to the said estate, funds, and succession in any way whatever; and it is hereby declared that it shall be in the power of the said trustees, or major number of them allenarly, and of no other person whatever, to pay or make over to the said Margaret Richardson such part or portion of the said funds and estate, heritable and moveable, as they shall think fit, on application

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made by her to that effect, to be used and disposed of by her as her own proper funds and estate; and it is hereby declared that her receipt or discharge without the consent of the said William Wardlaw shall be a good and sufficient receipt and exoneration for the same; declaring further, that in regard the said Margaret Richardson has already made and concluded a bargain for the purchase of certain parts of that tenement in George Street lately erected by Alexander Broom, mason in Glasgow, but of which the titles have not yet been executed and delivered, it is specially understood that the said trustees are to vest and shall vest the foresaid sum of £900 sterling, specially hereinbefore assigned, in or towards payment of the said subjects so purchased by the said Margaret Richardson, and shall take the titles thereof in favour of themselves and their foresaids as trustees for behoof of the said Margaret Richardson and William Wardlaw, in conjunct fee and liferent, for the liferent use allenarly of the said William Wardlaw, in case he shall survive her, and exclusive of his jus mariti or administration as before expressed, and for behoof of the child or children to be procreated of the said intended marriage, in the terms aforesaid; whom failing, for and on behoof of Agnes Elizabeth Jane Anne and Carswella Richardson, sisters of the said Margaret Richardson, and the survivors or survivor of them, equally, share and share alike, in fee; and which titles of the subjects, parts of the tenement in George Street above mentioned, shall further provide that in the event of the said Agnes Elizabeth Jane Anne and Carswella Richardson, they or any of them, succeeding to the said subjects, they shall be bound to pay, and the said subjects shall be disponed and conveyed to them under the burden of paying, to the next in kin of the said William Wardlaw the sum of £360 sterling, being that part of the price of said subjects which the foresaid sum specially assigned falls short of paying such part of the said sum of £360 as shall have been paid by the said William Wardlaw, either during the existence of the present intended marriage or after the dissolution thereof; payable the said sum of £360, or such part thereof as shall have been paid by the said William Wardlaw as aforesaid, at the first term of Martinmas or Whitsunday which shall happen twelve months after the decease of the last liver of the said William Wardlaw and Margaret Richardson, with the lawful interest thereof from the said term of payment thereof until paid, together with one-fifth part further of said principal sum of penalty in case of failure: And it is hereby further provided that it shall be lawful to and in the power of the said trustees, when called on by the said Margaret Richardson, and after her death when called on by the said William Wardlaw, so to do, to sell and dispone and lend call up from time to time any part of the sums, subjects, or estate now or hereafter to be vested in them; but they, the said trustees and their foresaids, shall be bound and obliged again to lay out, invest, settle, and secure the same on the terms above expressed.”

There were eight children of the marriage, which was dissolved by the death of Mr Wardlaw on 14th April 1863. He was survived by four of the children of the marriage, David Russell Wardlaw, Robert Richardson Wardlaw, Agnes Wardlaw, and Margaret Wardlaw. He left moveable estate to the value of £1327, 1s. 3d., and heritable estate, consisting in part of a share of a house in Glasgow, of which the other parts belonged to Mrs Wardlaw, to the value of £1809, 10s. 8d. He left a trust-disposition and settlement by which he conveyed his whole estate to trustees, directing them, inter alia, to implement the obligation in favour of his widow which he had undertaken in his marriage-contract, and to give his widow a liferent of his estate. He then directed them—“ Quarto, I direct my said trustees, after the death of my said wife, to divide the whole free residue and remainder of my subjects and estate hereby conveyed, equally to and amongst my whole children surviving at the time of my death, and the issue of such of them as may have died leaving lawful issue surviving at the time of my death, such issue succeeding equally per stirpes in the room and place of their deceasing parent; and failing any of my said children by death without leaving lawful heirs of their own bodies, and without having drawn their proportion, or being of lawful age without having legally and competently assigned the same or settled the succession thereto, then the share of such deceaser shall go equally to the survivors or survivor of them, my said children, and the issue of any of such of them as may have died leaving lawful issue surviving at the time of my death, such issue succeeding per stirpes in the room and place of the deceasing parent; payable my said children's shares to them on the sons respectively attaining the age of twenty-five years complete, and to the daughters on their respectively attaining that age or being married, whichever of these events shall first happen.”

David Russell Wardlaw, one of the surviving sons, died unmarried and intestate in 1870, and his sisters Agnes and Margaret were decerned executors-dative to him. The other son Robert Richardson Wardlaw died at Melbourne in 1873, leaving a widow and children. He left a last will and testament by which he gave his whole estate to trustees for the benefit of his widow and children.

Mrs Wardlaw died on 11th May 1879. The total amount of her estate falling under the contract was £6139, 18s. 2d. The whole amount in the trustees' hands was thus £9276, 10s. 1d.

On the death of Mrs Wardlaw the trustees raised this action of multiplepoinding and declaration for the purpose of having settled certain questions which had arisen as to the period of vesting of the provisions under the marriage-contract, and as to whether or not the share of heritable estate falling to David Russell Wardlaw was constructively converted under the marriage-contract and Mr Wardlaw's trust-deed or either of them.

The claimants who appeared were the children and the representatives of the children of Mr and Mrs Wardlaw, and their various claims depended on the period at which the funds should be held to have vested, and on the nature of the estate, i. e., whether it should be heritable or moveable.

The nature of these questions and the pleas of parties are apparent from the note of the Lord Ordinary ( Curriehill) quoted below.

On 18th March 1880 the Lord Ordinary issued this interlocutor—“The Lord Ordinary having considered

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the cause, Finds (1) That according to the sound construction of the marriage-contract between Mr and Mrs Wardlaw, and of the trust-disposition and settlement and codicil by Mr Wardlaw, mentioned in the record, the provisions thereby made by Mr and Mrs Wardlaw, and each of them, in favour of the children of the marriage, did not vest in said children at birth, but vested at the death of Mr Wardlaw in each of the four children of the marriage then in life, viz., David Russell Wardlaw, Robert Richardson Wardlaw, Agnes Wardlaw, and Margaret Wardlaw in equal shares, and that the shares which so vested in David Russell Wardlaw and Robert Richardson Wardlaw, both of whom are now deceased, now belong to their respective representatives: Finds (2) That according to the sound construction of the said deeds, conversion of the heritable estates belonging to Mr and Mrs Wardlaw into cash for distribution was not directed or intended to be directed, and that such conversion was not in the circumstances necessary for the proper division of said estates: Finds (3) That the shares of the whole estates of both parents falling to the said children who survived their father consisted partly of moveable and partly of heritable estate: Finds (4) That the share of David Russell Wardlaw, who died intestate, belongs, in so far as consisting of moveable estate, to his next-of-kin, and in so far as consisting of heritable estate, to his heir-at-law: Finds (5) That the share of Robert Richardson Wardlaw was transmitted by his trust-settlement, and now belongs to his testamentary trustees.”

His Lordship added this note:—

“ Note.—The raisers of this action of multiple-poinding are the trustees under (1) antenuptial contract of marriage, dated 11th November 1822, entered into between William Wardlaw and Mrs Margaret Richardson or Wardlaw, his wife, both now deceased; and (2) trust-disposition and settlement by the said William Wardlaw, and codicil thereto, dated respectively 30th April 1849 and 9th March 1852. William Wardlaw died on 14th April 1863 and Mrs Wardlaw on 11th May 1879. Eight children were born of the marriage, of whom four predeceased Mr Wardlaw unmarried and without issue. Two, viz., David Russell Wardlaw and Robert Richardson Wardlaw, survived their father but predeceased their mother. David died unmarried and intestate; Robert left several children and a settlement in favour of trustees, conveying to them, inter alia, all his interest under the marriage — contract of his parents and under his father's trust-settlement. The two children of the marriage who still survive are the defenders Miss Agnes Wardlaw and Miss Margaret Wardlaw, both of whom are above the age of twenty-five years.

No questions arise as to the rights of parties claiming under the settlement of William Wardlaw, which regulates the succession to the one-half of his estate not settled by the marriage-contract, and which directs the division to be in equal shares among his children surviving at the time of his death, and their issue per stirpes. The dispute relates to (1) the half of Mr Wardlaw's estate settled by the marriage-contract, and (2) the whole estate of Mrs Wardlaw, which also was settled by that deed.

[ His Lordship then quoted the clauses of the marriage-contract as above.]

As regards the provision of conquest made by Mr Wardlaw in his part of the contract, the representatives of the four children who predeceased their father maintain that a share of the estate vested in each child at birth. The representatives of the children who survived their father but predeceased their mother maintain that vesting took place at the dissolution of the marriage in 1863 by the death of Mr Wardlaw, while the children who still survive maintain that no vesting took place until the death of Mrs Wardlaw. It appears to me that according to the sound construction of this part of the contract no right to the conquest vested in any child who predeceased Mr Wardlaw, but that at the date of his death the provision vested in the four children then alive, none of the predeceasers having left issue. A provision of conquest in an antenuptial contract, the amount and indeed the very existence of which depends upon the state of the father's funds at his death, confers upon the children, not an immediate right of fee, but only a protected hope of succession during the father's life, and no right vests in any child of the marriage until the death of the father. (Ersk. iii, 8, sec. 43; Seymour v. Lamb, 8 Macph. 928; Grant's Trustees, 4 Macph. 336; and Champion v. Duncan, November 9, 1867, 6 Macph. 618.) And, accordingly, Mr Wardlaw by his trust-disposition and settlement, and in pursuance of his obligations in the marriage-contract to vest the conquest in the persons of the trustees who were to administer his wife's estate, and for the like purpose, conveyed to the trustees the universitas of his estate, to be held by them for payment of his debts and for implement of his marriage-contract obligations in favour of his wife, directing them ‘after the death of my said wife to divide the whole free residue and remainder of my subjects and estate hereby conveyed equally to and amongst my whole children surviving at the time of my death, and the issue of such of them as may have died leaving lawful issue surviving at the time of my death, such issue succeeding equally per stirpes in the room and place of their deceasing parent, and failing any of my said children by death without leaving lawful heirs of their own bodies, and without having drawn their proportion or being of lawful age, without having legally and competently assigned the same or settled the succession thereto, then the share of such deceaser shall go equally to the survivors or survivor of them my said children, and the issue of any of such of them as may have died leaving lawful issue surviving at the time of my death, such issue succeeding per stirpes in the room and place of their deceasing parent.’

Now, it is plain that Mr Wardlaw intended the universitas of his estate under his trust-disposition and settlement to be divided among his children, just as if the whole, in place of only the half, had been provided to them by the marriage-contract. The time which he fixes for the vesting of the interests under his trust-deed is his own death, and in doing so he has shown that he regarded, and I think rightly regarded, that period as the period of vesting under the contract.

The next question is, Whether Mrs Wardlaw's estate vested in her children at the same time as the provision of conquest? I am inclined to answer that question in the affirmative.

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I think it was clearly the intention of the parties that the half of the husband's entire estate, and the whole of the wife's estate, with the exception of the £900 already referred to, should be settled by the contract in precisely the same manner. The whole was to be held by the same trustees and administered for behoof of the children, and although Mrs Wardlaw undoubtedly reserved right to call up from her trustees the whole or any part of the estate conveyed to them by the contract, I still think that, subject to that reserved power, all the children of the marriage alive at the dissolution of the marriage by the death of her husband were to take vested interests in the fee. It will be observed that the husband was to have the power of dividing his wife's means among the children in such proportions as he should think fit. This, I think, clearly shows that the spouses contemplated and intended that the father should have power to confer a portion of the estate upon each of the children who should survive himself, and that such children, and not merely those who should survive their mother, were the objects of the power. But for that power, however, I should have been of opinion that vesting would not have taken place until the death of Mrs Wardlaw, seeing that the trustees were directed to hold the property for her and her husband in conjunct fee and liferent for his liferent use allenarly—in other words, for Mrs Wardlaw herself in fee—and that she reserved power to remove the whole, or any part of it, from the control of the trustees.

If I am right in the view thus expressed, it follows that David Russell Wardlaw and Robert Richardson Wardlaw, and their two sisters Agnes Wardlaw and Margaret Wardlaw, all of whom survived their father, each took at the dissolution of the marriage by the death of their father a vested interest in the estates of both parents, in virtue of the marriage-contract, and in their father's estate in virtue of his trust-disposition and settlement, and that the two surviving children and the representatives of those who have since died are therefore each entitled to one-fourth share of the fund in medio.

In the case of Agnes Wardlaw and Margaret Wardlaw there is no doubt, and their claims, each to one-fourth in her own right, must be sustained. The representatives of their two brothers are also respectively entitled to the shares which had vested in their authors. David Russell Wardlaw having died unmarried and intestate, his sisters Agnes and Margaret Wardlaw claim his fourth share as his executors-dative, and their claim is well founded if the succession is to be regarded as moveable or personal estate in his person. His heir-at-law, however, maintains that to a considerable extent the succession must be regarded as heritable, and to that extent he claims it for himself. The question depends upon whether, according to the sound construction of the marriage-contract, or the trust-deed, or either of them, the conversion of the heritable estate into cash is expressly directed, or is at least matter of necessary implication.

The estate of Mr Wardlaw at his death consisted of personal property of the value of £1327, and of house property in Glasgow of the free value of about £1800, and of a sum of £360 in the form of a real burden over Mrs Wardlaw's property. The house property consisted of a dwelling-house at Viewfield Terrace occupied by himself, and of the first flat and some cellars and offices in a tenement in West George Street, the remaining parts of which belonged to Mrs Wardlaw. Mrs Wardlaw's estate amounted to £6139, 18s. 2d., whereof £140 was moveable estate, and the heritable estate consisted of the property in West George Street other than those parts thereof which belonged to Mr Wardlaw. Now, as the bulk of the property both of Mr and Mrs Wardlaw was heritable, it must be held to be to that extent heritable quoad the succession of the children of the marriage, unless the parents gave express directions to convert it into moveable property, or unless conversion was necessary for the proper distribution of the estate. Now, there is no express direction to convert. The marriage-contract bound Mr Wardlaw to settle the half of his conquest in the names of the trustees for behoof of the children of the marriage. Mrs Wardlaw conveyed her estate to these trustees in trust for behoof of the children of the marriage in fee, in such proportions as the husband should appoint, and failing such appointment, equally. No general power of sale and conversion is conferred by the marriage-contract, although it is declared that ‘it shall be lawful to and in the power of the said trustees, when called on by the said Margaret Richardson, and after her death when called on by the said William Wardlaw, so to do, to sell and dispone and lend call up from time to time any part of the sums, subjects, or estate now or hereafter to be vested in them; but they, the said trustees and their foresaids, shall be bound and obliged again to lay out, invest, settle, and secure the same on the terms above expressed.’

‘The trust-disposition and settlement by William Wardlaw, on the other hand, directs the trustees, after the death of his wife,’ to divide the whole free residue and remainder of my subjects and estate hereby conveyed equally to and amongst my whole children surviving at the time of my death.’ Power is given to the trustees to lend out the trust-funds in certain securities therein specified, and at any time they may think proper ‘to sell and dispose of my estate, subjects, and effects, and that either by public roup or private bargain.’

The decisions upon a question like the present are conflicting. The leading case is that of Buchanan v. Angus, as decided in the House of Lords, 4 Macq. App. 374, where, in the absence of direction to convert, it was held that the trust-estate so far as heritable should pass to the heirs of deceased beneficiaries, and so far as moveable to their next-of-kin. And in two recent cases, viz., Auld v. Anderson, 4 R. 211, and Hogg v. Hamilton, &c., 4 R. 848, the First Division, following the case of Buchanan v. Angus, held that where the trust-estate consisted partly of heritage and partly of personal estate, it was not necessary to convert the heritage into cash although it consisted of house property not in its own nature divisible. The Court held that the division would be competently effected by conveying the heritable property in pro indiviso shares to the parties entitled thereto. On the other hand, the Second Division seems to have generally held that when the subjects consist of house property, conversion is necessary to secure proper division. See the cases of Fotheringham, 11

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Macph. 848; Nairn, 5 Rettie, 128; Boog, 10 Macph. 872. It is not easy to see any good reason why the decisions of the two Divisions should thus differ. It is not necessary, however, or indeed possible, to lay down any general rule applicable to all cases. Each must depend upon its own circumstances. All I shall say is, that I can see no practical inconvenience in following the course adopted by the House of Lords and by the First Division in the cases referred to. In the present case it is clear that both in the marriage-contract and in the trust-deed division in forma specifica was contemplated by Mr and Mrs Wardlaw. The succession under both deeds was a mixed succession, and must, I think, be held to have retained that character notwithstanding the recent sale of the subjects by the trustees. The result of the whole matter is that the share of David Russell Wardlaw, so far as moveable, has passed to his next-of-kin, and so far as heritable to his heir-at-law. As regards the share of Robert Richardson Wardlaw, no such question arises, seeing that he left a settlement transmitting to his trustees all his provisions under the marriage-contract and under his father's trust-settlement, and as in my opinion he had a vested interest under each of these deeds to the extent of one-fourth of the whole of the residue of the estates both of his father and his mother, the claim of his trustees must be sustained, and the claims of his children which proceed upon the footing that no right had vested in him must be repelled. Findings have been pronounced in accordance with the views indicated in the foregoing note, and the cause is appointed to be enrolled that the claims may be disposed of in conformity therewith.”

Thereafter on 20th March he issued an interlocutor ranking the claimants in terms of his previous findings.

The children of Robert Richardson Wardlaw reclaimed.

The Court directed the question of vesting of Mrs Wardlaw's estate to be first argued.

The surviving daughters argued—Vesting did not take place till the death of Mrs Wardlaw. She was fiar of her estate, undivested by the marriage-contract. A direction to hold her property for her and her husband in conjunct fee and liferent for his liferent use allenarly, and for the children of the marriage in fee, did not divest her of the fee. She further retained here a right to ask, and conferred on the trustees a discretion to give, back any portion of the trust funds. Ersk. iii., 8, 35; Wilson v. Glen, December 14, 1819, F.C., also in Ross L.C., Land Rights, iii. 716; Forrestv. Forrest, May 26, 1863, 1 Macph. 806. These were cases where there was no trust, but a trust would not make any difference. Its use is to prevent a father claiming the fee. (2) There is a destination-over to the wife's sisters of some of her estate. (3) A power of appointment given to the father cannot affect the vesting of the wife's estate. It has been held that power of appointment will not suspend vesting. It cannot therefore accelerate it. The question was, whether the conveyance in the marriage-contract was habile to divest the wife? no further divestiture was to be presumed than would satisfy the objects of the contract.

Argued for the respondents—The general rule is that the date of vesting is the date of dissolution of the marriage— Grant's Trustees v. Anderson, February 1, 1866, 4 Macph. 336; Angus’ Trustees, March 19, 1880, 17 Scot. Law Rep. 536. The existence of a trust distinguishes this case from those quoted on the other side. The wife was not a fiar in any sense after the contract was entered into. She had therefore only a power to ask the trustees to pay over any part of the funds to her, and it was put entirely in their option to do so or not as they chose. The father's power of distribution among the children implied a vested right in them.

At advising—