Scottish Court of Session Decisions

Thomas Connon was married to Christina Mackay, daughter of Benjamin Mackay, on 19th April 1859. There was no antenuptial contract of marriage.

Benjamin Mackay died on 29th July 1859 leaving a settlement under which Mrs Connon was, through the death of a sister who predeceased her father, sole residuary legatee.

After his death Mr and Mrs Connon executed the postnuptial contract hereinafter fully referred to.

Mrs Connon died in 1877, predeceasing her husband.

In an action in the Court of Session at the instance of Maggie Irvine, Crown Street, Aberdeen, against Thomas Connon, the pursuer on 12th March 1878 obtained decree against the defender for

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the following sums:—(First) The sum of £2 of inlying expenses attending the birth of an illegitimate child of which the pursuer was the mother and the defender the father; (Second) The sum of £10 per annum as aliment for the said child until the age of ten; and (Third) The sum of £12, 16s. 11d., being the amount of the expenses and dues of extract.

On the dependence of that action Maggie Irvine arrested in the hands of Henry Scott, house-agent, Portobello, and Dr Duncan Mackenzie, Kilcreggan, as trustees under a postnuptial contract of marriage between Thomas Connon and the deceased Christina Mackay or Connon, his wife, dated 3d and 9th November 1863, and also in the hands of Messrs Skene, Webster, & Peacock, W.S., Edinburgh, agents for the trustees, the sum of £150 alleged to be due by them to Thomas Connon. The pursuer then, by virtue of the warrant in the decree, arrested in the hands of Henry Scott, Alexander Scott, blacksmith, Portobello, Dr Duncan Mackenzie, and Thomas Connon, as trustees under the postnuptial contract, the sums of £150, £50, and £150 respectively, alleged to be due by them to Thomas Connon.

This was an action of furthcoming at the instance of Maggie Irvine against Henry Scott, Alexander Scott, and Thomas Connon as trustees under the postnuptial contract of marriage, arrestees, and Thomas Connon, principal debtor, concluding for payment of the sum of £150, or of such part thereof as would satisfy the amount of the inlying expenses, expenses of process, and two years and a quarter's aliment for the child.

The arrestees denied that at the date of the arrestments they held any funds belonging to Thomas Connon, and averred that Thomas Connon's beneficial interest under the postnuptial contract was a liferent of one-half of the trust funds, which funds consisted entirely of heritable estate derived from Mrs Connon; that the interests of the spouses under the contract were specially declared to be not arrestable for the debts of either, but to be in all respects alimentary only. They further averred that Thomas Connon on 2d March 1869 assigned to the marriage trustees his liferent interest in payment of a balance of £1500 due by him to them on his account as factor for the trust.

They pleaded—“(2) The interest of the principal debtor under the marriage-contract being specially declared to be not arrestable for debt, but in all respects alimentary only, the arrestments used in the hands of the trustees are inept. (3) In virtue of the assignation and conveyance granted by the principal debtor to the defenders, they are entitled to retain the income of the marriage trust thereby assigned until the amount due to them by the principal debtor is paid. (4) Separatim, The trustees being entitled at common law to retain till the balance due to them is paid off, are entitled to be assoilzied from the conclusions of the action.”

On 22d March 1882 the Lord Ordinary ( Fraser) repelled these pleas.

“ Opinion—No man can by any deed so settle his property for his own use as to withdraw it from his creditors. Various attempts of this kind have been made like the present, whereby a man conveys to trustees, at a time when he is solvent, funds to be retained by them, the income to be paid to him during his life as an alimentary allowance for himself, his wife, and children, and declared not to be assignable or attachable by creditors. Such an assignation is ineffectual as against creditors, and the income may be attached by them ( Learmonth v. Miller, 10 Macph. 107, aff. 2 R. (H. of L.) 62; Ker v. Justice, 5 Macph. 4; Dunlop v. Johnston, 3 Macph. 758, aff. 5 Macph. (H. of L.) 22).

The estate which came to Mrs Connon from her father Benjamin Mackay was not excluded from the jus mariti. The father's will is not in process; but the Lord Ordinary gave to the arrestees an opportunity of amending the record, if they could aver that Mrs Connon's estate coming to her from her father was exclusive of the jus mariti. The Lord Ordinary was informed that they could not make this averment, and therefore the case must be dealt with on the same footing as if Thomas Connon was the owner of the property, the revenues of which he wished to enjoy, and at the same time preclude his creditors from attaching them.

The assignation and conveyance were plainly ineffectual against an arresting creditor of Connon. He appropriated to himself £1500 of the revenues of the trust-estate, which it is said he ought not to have done; that is to say, he appropriated his own funds. There was no proper debt incurred by him to sustain the assignation as against his creditors.”

The defenders reclaimed, and in the Inner House obtained leave to put in a minute of amendment to the effect that Mrs Connon by the postnuptial marriage-contract had conveyed to them the residue of her father Dr Benjamin Mackay's estate to which she was entitled under his settlement dated 30th September 1845, and that by his settlement the trustees under it were directed “to take care always by a contract of marriage to exclude the jus mariti or right of administration of the husbands of his two daughters in regard to their property.” These trustees had subsequently in 1865, in terms of an interlocutor of the Lord Ordinary in an action of declarator and denuding at the instance of the marriage-contract trustees, denuded of and conveyed the estate to the marriage—contract trustees. The defenders also added the following plea-in-law—“(2) The estate sought to be attached having vested in Mrs Connon under her father's will, exclusive of the jus mariti of the common debtor, the arrestments used in the hands of the trustees are inept.”

On 24th October 1882 the Court recalled, in hoc statu, the interlocutor of the Lord Ordinary, and remitted the cause. The terms of the settlement of Mr Mackay and of the postnuptial contract are fully recited and referred to by the Lord Ordinary.

On 8th November 1882 the Lord Ordinary ( Fraser) pronounced this interlocutor:—“Finds that the now deceased Benjamin Mackay, one of the classical masters of the High School of Edinburgh, executed on 13th October 1845 a holograph trust-deed and settlement, whereby he conveyed to the trustees therein named, All and Sundry lands, heritages, debts, heritable and moveable, which should belong to him at the time of his death, and particularly his heritages and personal estate therein specially mentioned: Finds that by the said deed the said Benjamin Mackay directed his trustees to make payment of certain legacies, and among others an annuity

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of £30 to each of his two daughters Christina and Catherine Mackay, and also to pay to each of said daughters £100 on her marriage-day in addition to said annuity: Finds that he directed his trustees to assign and dispone the residue of his estate, after payment of debts and legacies, to his said two daughters, or to the survivor of them, or their heirs lawfully begotten: Finds that the daughter Catherine predeceased her father without issue, and that thereby the daughter Christina became the sole residuary legatee: Finds that Christina married Thomas Connon on 19th April 1859, and that her father Benjamin Mackay died on 29th July 1859: Finds that no antenuptial contract of marriage was entered into between Thomas Connon and Christina Mackay; but finds that the jus mariti and right of administration of Thomas Connon, in so far as regards the estate coming to Christina Mackay under her father's settlement, were by said settlement excluded: Finds that Thomas Connon and Christina, his wife, executed on 3d and 9th November 1863 a postnuptial contract of marriage, whereby they conveyed to certain trustees therein named— First, the estates heritable and moveable which belonged to the said Benjamin Mackay, and to which Mrs Connon succeeded under her father's settlement; and, secondly, the said Thomas Connon conveyed over to the said trustees the heritable and moveable estate which he might possess at the time of his death: Finds that by said deed the trustees were directed to pay (in the event which has occurred, the predecease of the wife) one-half of the free yearly rents, interests, and profits arising from the said estates to the said Thomas Connon, and to retain the other half thereof for the purposes of educating and maintaining the children of the marriage: Finds that it was declared by said deed that it should not be in the power of Thomas Connon or his wife to assign, restrict, or discharge the liferent provisions in their favour without the special consent of the trustees; and it was further declared that the liferent provisions should not be arrestable for the debts of Thomas Connon and Christina Connon, nor by the diligence of their creditors, but should be in all respects alimentary only: Finds that on 8th January 1866, the trustees, acting under the trust-deed and settlement of Benjamin Mackay, denuded themselves of their said trust, and conveyed over the whole trust property then remaining in their hands, after payment of debts and legacies, to the marriage-contract trustees under said postnuptial contract: Finds that the defenders in this action are now the trustees acting under the said postnuptial contract, and hold the estate conveyed over to them for the purposes of that contract, said estate consisting wholly of property to which Christina Mackay or Connon acquired right as residuary legatee of her father, and no part thereof being estate that belonged to Thomas Connon: Finds that Mrs Christina Mackay or Connon died in the year 1877, and that Thomas Connon is still alive, and that there are surviving issue of the marriage: Finds that Thomas Connon became indebted to the marriage-contract trustees in a sum of upwards of £1500, and that in order to the payment of that debt, he, by assignation and conveyance, dated 2d March 1869, assigned his liferent interest under the contract to the trustees, to be retained by them until the debt due to them should be paid: Finds it not admitted by the pursuer that said debt has not been paid by the retention by the defenders of his half of the income of the estate: Finds that the pursuer is a creditor of Thomas Connon, in virtue of a decree of the Court of Session dated 12th March 1878, for the sums contained in said decree, and in virtue of said decree used arrestments in the defenders' hands in the month of December 1877, and in the month of November 1879: Finds in law, that the arrestments used by the pursuer in the defenders' hands could not competently attach any of the funds payable under the postnuptial contract to Thomas Connon, in respect that said funds were declared by the said postnuptial contract not to be attachable by creditors except for alimentary debts, and that pursuer's claim is not an alimentary debt within the meaning of the contract: Therefore assoilzies the defenders from the conclusions of the action: Finds no expenses due to either party; and decerns.”

Opinion.—The amendment upon the record allowed by the Inner House has totally changed the aspect of this case. When the Lord Ordinary pronounced his judgment on 22d March 1882, he was informed that the jus mariti of the husband of Benjamin Mackay's daughter had not been excluded by his deed of settlement, in reference to the estate bequeathed by him to her, and it was upon this footing that that interlocutor was pronounced.

The amendment on the record makes a totally different case, and is followed by a new plea, to the effect that ‘The estate sought to be attached having vested in Mrs Connon under her father's will, exclusive of the jus mariti of the common debtor, the arrestments used in the hands of the trustees are inept.’ In support of this plea the defenders have produced the trust-deed and settlement of Benjamin Mackay. This deed is holograph of the testator, and contains a strange mixture of technical clauses of conveyancing with garrulous reminiscences of his past life, and recommendations as to the mode of teaching in the High School of Edinburgh. Apparently the testator had a style-book before him, and so far as the technical clauses are concerned he seems to have copied them correctly. The question however is, whether he has effectually excluded the jus mariti of his daughter's husband from the very large estate (said to be £30,000) which she took under his will. There are two specific legacies left to his two daughters—first, an annuity to each of £30, and secondly, a sum of £100 to be paid to each of them on their marriage-day. This latter bequest is contained under the sixth direction to the trustees, and is in the following terms: “And in the event of either of my daughters getting married, with the consent of my said trustees, before the trust is wound up, I hereby direct my said trustees to pay over to her on her marriage-day one hundred pounds in addition to her regular annuity, taking care always by a contract of marriage to exclude the jus mariti or right of administration of her or their husbands in regard to their property.” This clause occurs in the middle of the deed, and is followed by a number of other bequests,—the disposal of the residue to the daughters coming in at a subsequent part, and not having attached thereto any specific exclusion of the jus mariti.

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Is it then excluded with regard to residue by the clause above quoted?

Keeping in mind that this is a deed not drawn by a conveyancer, but by the testator himself, some indulgence must be granted in construing the language he has employed, in endeavouring to ascertain his intention. The clause certainly does not apply literally to the events as they occurred. He did not contemplate, when he wrote his settlement in 1845, that he would live to see either of his daughters married, and therefore the instruction is given to his trustees. He did, however, live to see one of them married, the other having predeceased him; and he survived the marriage by three months. There was no contract of marriage executed by Thomas Connon and Mackay's daughter. Why this was overlooked can now only be a matter of conjecture. Perhaps he had thought the exclusion of the jus mariti in his holograph will to be sufficient for the purpose; perhaps, on the other hand, he had confidence in his intended son-in-law, and did not mean to exclude his marital rights. The latter conjecture can hardly be accepted, looking to the above clause standing in his will; and it is for the Court now to determine whether, if he held the first view—that he had effectually excluded the jus mariti—it was sound.

Now it has been repeatedly determined that it is not necessary to use the very words ‘exclusive of the jus mariti,’ though such words are used here; and the difficulty of the case does not arise from their absence. Language of equivalent import, if sufficient to declare intention, has been held effectual. In the case of Wilson's Trustees v. Wilson's Factor (20th November 1868, 7 Macph. 136) Lord Deas said that ‘there is no doubt that all questions of this kind are questions of intention,’ and so dealing with that case the Court held the jus mariti excluded, although there was no special exclusion applicable to the fund. In Black v. Pearson (9th February 1841, 3 D. 511) Lord Mackenzie said, in disposing of another case where it was alleged that the jus mariti was not excluded because of the non-use of express words to that effect,—In absence of authority I cannot think that we are warranted in rejecting the true and certain meaning of a marriage-contract in favour of the wife, and enabling the husband, or his creditors in his place, palpably to cheat her because there is a want of the technical words “excluding the jus mariti” (See also Stables v. Murray or Stables, not reported, but referred to in Fraser, 1 Husband and Wife, 787).

Dealing with the present case, therefore, as a question of intention, the Lord Ordinary holds it to be clear that the whole estate bequeathed to the testator's daughter was intended by him to be held exclusive of the jus mariti. But the question always remains, did he effectually carry out his intention? Although the clause is mixed up with the direction to the trustees to hand over £100 to his daughter on her marriage-day, yet the language as to exclusion of the jus mariti is quite general. The trustees are to ‘exclude the jus mariti or right of administration of her or their husbands in regard to their property,’—words which are wide enough to exclude the subsequent bequest of residue. The exclusion is not to apply merely to the £100, but to all the property coming to the daughters under the will. If intention is to be given effect to, then these words ought to be read into the subsequent clause disposing of the residue.

If, then, the jus mariti was excluded, the whole estate dealt with by the postnuptial contract being the separate estate of the wife, she had full power to say in what way it was to be disposed of. The conveyance of one-half of the liferent of the estate to her husband was a voluntary gift by her, and must be taken by him and his creditors under the condition annexed to it. Now one of the conditions is that the fund should not be arrestable by Thomas Connon's creditors, nor assignable by him without the consent of the trustees. Whether the assignation granted by him to the trustees for the debt which he owed them is valid against this prohibition, is a question that need not at present be answered. The validity of that assignation cannot be challenged by the pursuer, who is a creditor using arrestment, which is equally prohibited. If there had been no prohibition against assignment or arrestment in the contract, the pursuer in competition with the defenders must fail (if the debt of £1500 be not paid off), because the assignation was completed years before the arrestment was used. It is needless, however, to consider whether the assignation excludes the claim of the pursuer, because the other ground of judgment, that arrestments are prohibited, is quite sufficient for that purpose. If it had been necessary for the defenders to found upon the assignation in order to exclude the pursuer's claim, then a remit to an accountant would be necessary in order to ascertain whether any part of the debt of £1500 is still due.

It is said, however, that the pursuer's claim is an alimentary debt, seeing that it is for inlying charges and aliment of an illegitimate child of which Connon is the father. This is an erroneous view to take of the pursuer's claim, which is not of the character of an alimentary debt, having the character of privilege and preference over other creditors. Her claim is one for rateable contribution or relief. She is not an alimentary creditor of Thomas Connon, as having made furnishings of food and clothing to him. ‘An action of filiation,’ said Lord Neaves, ‘is not an action of aliment; it is an action of debt between the parents, concluding that the defender shall relieve the pursuer in part of that support which she is bound to give to her child’ ( Buie v. Steven, 5th December 1863, 2 Macph. 223).”

The pursuer reclaimed, and argued that Connon's jus mariti had not been excluded by Mr Mackay's settlement — Cuthbertson v. Pollock, Hume, 206; M'Alister v. M'Donald, M. 6600.

At advising—