Scottish Court of Session Decisions

Mrs Helen Campbell or Mackie was predeceased by her husband Peter Mackie. In 1855 she contracted a second marriage with John Gloag. Several children had been born of the first marriage, three of whom, two sons and a daughter, were alive at the date of the second. In contemplation of her second marriage Mrs Mackie entered into an antenuptial marriage-contract with her intended husband John Gloag. By this deed she, with his consent, conveyed to certain parties (including herself and him) as trustees—(1) Certain heritable property in Glasgow; (2) 31 shares in the Clydesdale Bank, and 37 shares in the Gorbals Gravitation Water Company; (3) A policy of assurance upon her life for £499. Gloag on his part conveyed no property to the trustees. The purposes of the trust were that the trustees should hold the property conveyed by the wife for behoof of her “in liferent for her liferent alimentary use of the annual proceeds thereof allenarly, and seclusive of the jus mariti

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and right of administration of the said John Gloag, and not affectable by his or her debts or deeds, or by the diligence of their creditors, and for behoof of the children procreated or to be procreated of the body of the said Mrs Helen Campbell or Mackie in such proportions and on such terms and conditions as the said Mrs Helen Campbell or Mackie might appoint by a writing under her hand, which failing, equally among them share and share alike, and their respective heirs and executors whomsoever in fee.” The wife bound herself, out of her liferent to pay the premiums on the policy of assurance, and a sum of £800 with interest, being a debt due by her to the Clydesdale Bank, in security of which the bank held her shares of its own stock and those of the Gorbals Water Company. The trustees entered into possession of and made up titles to the whole trust-estate conveyed to them, and were infeft in the heritable property. They continued to administer the trust-estate and to pay the income thereof to Mrs Gloag during her lifetime. In 1872, John Gloag, in consideration of £72, 10s. paid to him by his wife, assigned to her in liferent, excluding his jus mariti and right of administration, and to her son by her first marriage, William Cross Mackie, the pursuer of this action, in the event of his surviving her, also in liferent, and to Alexander Mackie and Robert Mackie, his children, in fee, the lease of certain heritable subjects situated at Largs. The assignation, which was recorded, reserved to Mrs Gloag power of sale and application of the price of the subjects without the consent of any party whomsoever.

Mrs Gloag died on 16th March 1881. There were no children of the second marriage. Of the three children of the first marrriage who were alive at the date of the second, one son had predeceased her, unmarried and intestate, and there remained alive at her decease the other son, the pursuer, and the daughter Mrs M'Cutcheon.

Mrs Gloag left a trust-disposition and settlement, dated 31st January 1881, by which she conveyed to certain parties, as trustees, the whole means and estate then belonging to her, which included that formerly conveyed to her marriage contract trustees, including the leasehold subjects in Largs destined to her husband and her in conjunct fee and liferent, for his liferent allenarly, and to her in fee. The heritable subjects at Largs above referred to were specifically conveyed, and the destination of them to herself and the pursuer successively in liferent, and his children in fee, declared to be expressly revoked. The deed then proceeded on the narrative that certain property had been conveyed by her in the marriage-contract for behoof of herself in liferent and her children in fee, in such proportions as she might appoint, and that it was her intention to exercise that power to direct the marriage-contract trustees to transfer the property vested in them to the testamentary trustees that it might all be dealt with as part of her general estate, which was all conveyed to the trustees. The trustees were appointed her executors. Sundry codicils were afterwards added to it. With regard to the purposes of the deed and codicils it is sufficient for the purposes of this case to say that the testator in consideration that her son William Cross Mackie had not conducted himself to her satisfaction either in business or otherwise, left him an annuity of £25 and a legacy of £300, both payable to him in the discretion of the trustees. She also gave her trustees discretion to make certain annual payments to his only surviving son in the event of his conducting himself to their satisfaction.

The benefit to be derived by the pursuer under his mother's settlement was thus greatly less than he would have enjoyed if he had received along with Mrs M'Cutcheon an equal share of the fees of the subjects conveyed in his mother's marriage-contract with Mr Gloag, which property, as above stated, was to be divided among her children procreated or to be procreated, equally among them, failing division by her.

In November 1881 he raised the present action against his mother's testamentary trustees, and also against the trustees under her marriage contract. He concluded for reduction of his mother's trust-settlement and codicils, as having been wrongfully impetrated from her and as not being duly executed in point of law, and for declarator that he had right under the marriage-contract to one-half of the heritable property and other means and estate conveyed by his mother to her marriage-contract trustees, and for decerniture against the marriage-contract trustees to convey to him his mother's estate to the extent claimed. There were also declaratory conclusions in reference to the property at Largs, to the effect that the pursuer had the sole and exclusive right of liferent and liferent use of the heritable subjects at Largs, and for decree of removal therefrom against the testamentary trustees. There was also a conclusion for accounting against the testamentary trustee, and against both bodies of trustees conjunctly and severally for payment of £1500 as the balance of his mother's estate due to him under the marriage-contract, and of £500 in respect of the lease of the subjects at Largs.

The reductive conclusions, which were based on allegations of unsoundness of mind on the part of the testator, were afterwards abandoned, and that concerning the subjects at Largs was, in respect that the titles and keys thereof had been handed to the pursuer as at Whitsunday 1881, restricted to £25 as the amount of rent due in respect of the trustees' possession of them.

The pursuer averred that his mother had mistaken the scope of the power of appointment reserved to her in the marriage-contract, and had attempted to deprive him of his just rights under it, and to substitute therefor provisions of much less value, and dependent on the discretion of the testamentary trustees, and that this was ultra vires of her under the marriage-contract.

He pleaded—“(1) The pursuer's mother Mrs Mackie or Gloag did not validly execute her power of appointment under the said antenuptial-contract of marriage by the foresaid trust-settlements or otherwise. More particularly, there has been no valid execution of the power, in respect that (1st) no provision has been appointed to the pursuer, or at least it is illusory; (2nd) no provision has been appointed to the heirs and executors of the pursuer's deceased brother Alexander; and (3d) beneficiaries under the truster's settlements, not being objects of the power, are made to share in the estate, the subject of the power. (2) The pursuer is entitled to one-half of the heritable subjects, means, and estate

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thereby conveyed, either in his own right, or partly in his own right and as next-of-kin of his brother Alexander Mackie. Or otherwise, with regard to the said heritable subjects, the pursuer is entitled to one-third thereof as in his own right, and to another third as heir-at-law of his said brother. (3) The defenders' trustees under the said antenuptial contract are now bound to convey to the pursuer a part or share of the said subjects and means and estate according to the extent of his rights and interests therein, and to account to him for the rents, profits, and income thereof since his mother's death. Or otherwise, if the same were conveyed by them to the trustees under Mrs Mackie's second trust-settlement, and the same have been sold, both sets of trustees are now bound to account to the pursuer for their intromissions therewith, including the prices or values thereof.”

The defenders pleaded—“(1) The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (2) The provisions contained in the marriage-contract of Helen Campbell or Mackie and John Gloag in favour of the children of the said Helen Campbell or Mackie of her first marriage were not onerous or irrevocable, and the pursuer had and has no jus crediti therein, and the said provision being testamentary and revocable the present action cannot be maintained. (3) The power of apportionment under the antenuptial contract of marriage libelled having been validly exercised by Mrs Mackie or Gloag in the trust-settlement and codicils executed by her, the pursuer is not entitled to have the said deeds set aside, or to have the property falling under the said contract of marriage dealt with as if no apportionment had been made. (4) The said exercise of the said powers is not invalid in respect of the particular objections stated thereto by the pursuer, because (1st) the pursuer takes a substantial interest under the said deeds of Mrs Gloag; (2d) it is not necessary to a valid exercise of a power of apportionment to include a deceased child in the scheme of apportionment; (3d) that it is a lawful and valid exercise of the said power to apportion the funds to children in liferent and grandchildren in fee; and (4th) the apportionment is valid in respect of the provisions of 37 and 38 Vict., c. 37.”

The Lord Ordinary pronounced this interlocutor:—“Finds that the pursuer by minute lodged in process has abandoned his conclusions for reduction founded on the alleged mental incapacity of the testator: Finds that the pursuer is one of the children procreated of the marriage between the now deceased Peter Mackie and Helen Campbell or Mackie or Gloag: Finds that sometime after the death of Peter Mackie, his widow Helen Campbell or Mackie contracted a second marriage with John Gloag, and entered into an antenuptial contract with him:… Finds that the provision therein made in favour of the then existing children of Mrs Mackie was testamentary and revocable, and conferred on them no jus crediti entitling them to challenge the deeds of settlement of the said Helen Campbell or Mackie or Gloag: Therefore sustains the second plea-in-law for the defenders: Finds and declares that the pursuer has under and in virtue of an assignation, recorded… 23d April 1873, right to a liferent of a lease of the subjects therein described, which assignation was granted by the said John Gloag, with consent of the pursuer's mother, to and in favour of her in liferent, and to the pursuer, in the event of his surviving her, also in liferent, for his liferent use after her death, and to Alexander Mackie and Robert Mackie, children of the pursuer, in fee, and which liferent right in favour of the pursuer commenced at the death of his mother on 16th March 1881: Finds that the defenders took possession of the subjects contained in said lease, and retained possession of them till Whitsunday 1881: Finds that they are bound to pay a rent to the pursuer for the time they so possessed, and fixes the same at £5, for which decerns against the defenders: Finds that the pursuer obtained possession of the said subjects at Whitsunday 1881, and that it is unnecessary therefore to grant any decree ordaining the defenders to flit and remove from the same: Quoad ultra, assoilzies the defenders from the conclusions of the action, and decerns,” &c.

“ Opinion.—The pursuer William Cross Mackie is a son by her first marriage of Mrs Helen Campbell or Mackie or Gloag, and he seeks in the present action to upset the testamentary disposition of her property made by her. Her settlements are sought to be reduced upon the ground that she was not of sound mind when she executed them, which ground of reduction has however been departed from by the pursuer, conform to his minute lodged in process.

It is, however, still maintained by the pursuer that he is entitled to obtain declarator that the disposition and settlement of his mother was ultra vires of her, in respect that it is in violation of the antenuptial marriage-contract which she entered into with her second husband John Gloag.

The first husband of the truster, whose deeds are challenged, was Peter Mackie. Of the marriage between him and Mrs Helen Campbell or Mackie or Gloag there were three children, viz., the pursuer, and Mrs Agnes Mackie or M'Cutcheon, and Alexander Mackie, who died before his mother.

In the year 1855 Mrs Helen Campbell or Mackie, the mother, married John Gloag, and entered into an antenuptial marriage-contract with him dated 12th December 1855. Apparently the whole property that was dealt with under this contract belonged to the wife, and its object was to protect that property for her use or for the use of those to whom she might think fit to give it. She conveyed over to certain trustees—[ His Lordship here specified the property conveyed, and recited the purposes as above quoted]. There were no children of the marriage between the pursuer's mother and John Gloag.

The question now arises, whether the pursuer is entitled to found upon this marriage-contract as giving him a right to challenge the subsequent testamentary arrangements made by his mother, whereby his interest is limited to an annuity of £25 a-year, and a legacy of £300—being very much less than the sum be would obtain if the provision in the marriage-contract dividing the mother's property among her children equally had been allowed to take effect. It is unnecessary to detail the testamentary deeds executed by Mrs Gloag. The import of them is, that becoming more and more dissatisfied with the conduct of her son the pursuer, she makes a reduction of the legacy left to him in each succeeding settlement or codicil.

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The Lord Ordinary is of opinion that the pursuer is not entitled to found upon the marriage-contract as a ground of challenge of his mother's will. That contract, so far as he is concerned, was simply mortis causa and revocable. As respects any children that might have been procreated of the marriage, the provision was in obligatione, and could not be defeated by any gratuitous deed of the parent. But so far as concerns the children of a former marriage, there was no onerosity in the matter. They were merely heirs in destinatione, and their provision could be recalled like any other legacy. Thus there may be in the same deed persons called as beneficiaries to the same fund who may have very different rights, and so the children procreated and the children to be procreated may have, the first only the rights of a legatee, while the others have a jus crediti which no gratuitous deed can defeat. If the provision had been to the children of the marriage, whom failing to the children of Mrs Gloag by her first marriage, there can be no doubt that the latter must submit to any gratuitous defeasance by their mother of the provision, and the case is not altered, although the clause does not call them by way of substitutes, but confers upon them an equal share with the children of the marriage. The law is stated very well by Bankton (i. 5, 15)—‘Though the children are creditors in such provisions with respect to gratuitous deeds made in contravention thereof, yet this extends not to the substitutes failing children; for the children only are in oibligatione, in whose favour the provision as binding was made, the intention of parties being only to secure their interest; but other substitutes are only in destinations, heirs by simple destination, and so may be disappointed of their hope of succession at pleasure as any other heirs by naked destination.' See also Erskine, iii. 8, 39; Lang v. Brown, May 24, 1867, 5 Macph. 789; Macleod v. Cunninghame, July 20, 1841, 3 D. 1288, aff. 5 Bell's App. 210.

No doubt there may be cases where a provision in a marriage-contract not in favour of children of the marriage must be held to be irrevocable. If, for example, there should be a destination in the contract, after heirs of the marriage, to the wife's heirs, or one-half to her heirs and one-half to the husband's, the wife is understood to have contracted for the destination to her own heirs, as well as for that to the children of the marriage, and consequently the husband cannot himself gratuitously change the destination to the prejudice of the wife's heirs. See Bankton, i. 5, 16; Kinsman v. Scot, M. 12,980; Yorkston v. Simpson, M. 12,981. But in the present case this qualification of the rule does not apply, for it is the wife herself who makes the alteration upon the destination in the marriage-contract, and this in reference to property of her own. She was under no obligation whatever to make any provision for the children of her first marriage, and when she did make it in her marriage-contract with Gloag she was under no obligation to abstain from revoking it. Gloag made no provision for her by the marriage-contract, and it cannot be held that he stipulated for the benefits conferred by his wife on the children of her first marriage as a part of the bargain entered into with her. The mistake that has been committed in this case is in supposing that. the pursuer has a jus quœsitum under his mother's marriage-contract with Gloag, in the same way as children of that marriage would have had.

If it had been necessary, the Lord Ordinary would have been prepared to state the reasons upon which he holds that the Act 37 and 38 Vict. cap. 37, applies to Scotland, and therefore that the execution of the power of appointment by Mrs Gloag was not inept, because it made no provision for the heirs of Alexander Mackie, who predeceased his mother. Nor is it necessary to express any opinion as to whether the share of the marriage-contract fund given to the pursuer under his mother's settlement was illusory. These questions are superseded by the finding that the pursuer has no title to sue.

There was conveyed by Mrs Gloag's trust-disposition and settlement to her trustees the lease of certain heritable subjects, described in the conclusions of the summons, lying within the parish of Largs. This lease had, by deed of assignation dated in November 1872, been assigned by John Gloag (in consideration of the sum of £72, 8s. paid to him) to Mrs Gloag in liferent, and to the pursuer, her son, in the event of his surviving, also in liferent, and to the pursuer's two sons in fee. Mrs Gloag apparently conceived that she had right to dispose of this lease as she thought fit. A power of sale was reserved to her, but there was no power reserved of gratuitously defeating the liferent of the pursuer. The defenders at first did not admit this contention on the part of the pursuer, and therefore they retained possession from the time of Mrs Gloag's death on 16th March 1881 till Whitsunday 1881, when they delivered up the subjects to the pursuer along with the titles, and in the record in this action the 5th plea is—[ that the conclusions hereanent are uncalled for]. The Lord Ordinary is thus saved the necessity of expressing any opinion as to the legal rights of parties, further than to give effect to the admission by the defenders that the pursuer is entitled to the liferent of the lease notwithstanding the terms of Mrs Gloag's trust-disposition and settlement. The defenders must, however, pay a rent for the period between 16th March and Whitsunday 1881, and as it was conceded that the rent for a whole year would be £25, the Lord Ordinary considers that the sum to be paid by the defenders should be £5.”

The pursuer reclaimed, and argued—This was a provision for children of both marriages under antenuptial contract, by which the granter was divested in favour of trustees, under an obligation to convey to certain beneficiaries in existence at the date of granting. From the moment of delivery of the deed, which was constituted by the infeftment of the trustees, the latter were holding for the children independently of the granter. This deed was therefore (1) onerous, and (2) a delivered and irrevocable deed. The authorities relied on by the Lord Ordinary did not meet the circumstances of the present case. The deed in Macleod's case was unilateral, that in Long's case was postnuptial. This case was sui generis in its facts, for the beneficiary claiming was not an ordinary third party, but had a natural claim on the granter. This was clearly not a case of substitution of the children of the first marriage, but of institution. The Act 37 and 38 Vict. c. 37, was only a supplement to an

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English Act, and did not apply to Scotland.

Authorities— Burnett v. Morrow, March 26, 1864, 2 Macph. 929; Tennent v. Tennent's Trustees, July 2, 1869, 7 Macph. 936; Turnbull v. Tawse, 1 U. & T. 80; Duguid v. Caddell's Trustees, June 29, 1831, 7 S. 844; Miller v. Milne's Trustees, February 3, 1859, 21 D. 377; Mitchell v. Mitchell's Trustees, June 5, 1877, 4 R. 800; Napier v. Orr, November 18, 1864, 3 Macph. 57; Leckie v. Leckie, 1776, M. 11, 581; Downie v. M'Kidop, December 5, 1843, 6 D. 180; Sommer—rille v. Sommerville, May 18, 1819, F.C.; Collie v. Pirrie's Trustees, January 22, 1851, 13 D. 506; Gilpin v. Martin, May 25, 1869, 7 Macph. 807; Ferguson's Trustees v. Hamilton, January 13, 1860, 22 D. 1442.

The defenders replied—The circumstance that the provision was in a marriage-contract, and in favour of a child of the truster, did not make it irrevocable. It was settled by a long series of decisions that any rights in a marriage-contract, beyond those to immediate children, were testamentary and revocable, unless such right were a purchased right, and then it would subsist on the ground of jus quœsitum tertio. If the children benefitted were not children of both contracting parties, they had no right in virtue of the contract between them. A trust for behoof of persons in existence, along with others not in existence, was not the same as one for behoof of the former class alone. The trust here owed its existence solely to the marriage. The trustees were holding against the granter for behoof only of the proper objects of the marriage-contract, i.e., the offspring of the marriage in contemplation of which it was made; if none, they were holding, in virtue of the reserved power of appointment, for behoof of the granter herself and her testamentary nominees. Had Mrs Gloag meant this provision to be irrevocable she would have said so; not having done so it is to be presumed she meant the reverse. The children of the first marriage had thus no succession protected by paction. Their right was one merely of succession, not of contract. They had no jus quœsitum.

Authorities— Forrest v. Robertson's Trustees, October 27, 1876, 4 R. 22; Fraser on Husband and Wife, p. 1410, and cases there cited; Costine's Trustees v. Costine, March 19, 1876, 5 R. 782— aff. H. of L. 6R. 13; Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237; Barbour v. M'Niven, July 7, 1826, 4 S. 806.

At advising—