Scottish Court of Session Decisions

By contract of marriage, dated 7th September 1867, entered into between James Hutcheson junior and Minnie Walker, the former bound and obliged “himself and his heirs, executors, and successors whomsoever, all jointly and severally, renouncing the benefit of discussing them in their order, to make payment to the said Minnie Walker, his promised spouse, if she shall survive him, during all the days and years of her life, of a free yearly annuity of £100 sterling, exempted from all burdens and deductions whatever, and that at two terms in the year, Whitsunday and Martinmas, by equal portions and in advance, beginning the first term's payment of the said annuity at the first of these terms that shall happen after the decease of the said James Hutcheson junior, for the half-year succeeding the said term, and the next term's payment thereof at the first term of Whitsunday or Martinmas thereafter; and so continuing half-yearly, termly, and proportionally in the due and regular payment of the said annuity during the lifetime of the said Minnie Walker,” with interest and penalty as therein specified. Mr Hutcheson also bound himself and his foresaids to pay to the said Minnie Walker £30 as an allowance for mournings; and declared the above annuity to be purely alimentary, and not assignable or arrestable, nor subject to the jus mariti or right of administration of any future husband the said Minnie Walker might marry, nor liable for his debts or deeds: Further, he assigned, conveyed, and made over to and in favour of the said Minnie Walker, in case she should survive him, the whole household furniture and plenishing which might pertain to him at the time of his death.

These provisions were accepted by the wife in full satisfaction of all her legal claims.

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The marriage-contract further contained these clauses—“And in security and implement pro tanto of the foregoing obligations and provisions, the said James Hutcheson junior hereby assigns, conveys, and makes over to and in favour of John Cross Hutcheson, residing in Glasgow, his brother, and Robert Hunter Dunn, shipping agent, Glasgow, and the acceptor and survivor of them, and to such other person or persons as may be assumed by them or him, in virtue of the powers after inserted (the majority of said trustees, original and assumed, surviving, and resident in Great Britain or Ireland, so long as there may be more than one, being always a quorum), and that as trustees or trustee in trust, and for security pro tanto of the provisions above conceived in favour of the said Minnie Walker, All and Whole a certificate or policy of insurance for the sum of five hundred pounds, marked Number 16,486 A, effected on his own life by the said James Hutcheson junior with the Life Association of Scotland;” and the trustees were also empowered “to lay out, secure, and invest, and also to uplift and reinvest the same, and that on such security, heritable or moveable, as they the said trustees may think proper, taking the bonds and securities therefor payable to themselves in trust for behoof of the said Minnie Walker, in liferent, for her liferent use allenarly, and to the child or children of the said marriage, in such proportions as the said James Hutcheson junior, whom failing the said Minnie Walker, may direct, by any writing under his or her hand, and failing such direction, among them equally and their heirs and assignees whomsoever in fee.”

Mr Hutcheson died on 4th August 1872. The only estate which he left was the policy of insurance and his household furniture and plenishing.

This was a Special Case presented for the opinion of the Court, to which the marriage-contract trustees were the first parties, and the widow the second party.

The second party maintained (1) that by the terms of the marriage-contract she was entitled to receive, and the first parties as trustees were bound to pay to her, so long as any trust funds remained in their hands, the annuity of £100 per annum provided to her by her said marriage-contract; and (2) that she was entitled to the sum of £30 for mournings, to be paid to her by the first parties out of the trust funds.

The first parties maintained that the trust funds under their charge were not sufficient to justify them in paying to the second party the sum of £30 and the annuity of £100 provided in the marriage-contract, except in so far as the interest of the £500 which formed the trust funds might be regarded as a partial payment; or at all events that they were not justified in paying away any portion of the capital to the second party during the minority of the children of the marriage without judicial authority.

Argued for the second party—The question was one of construction, and under the contract the wife was entitled to the whole fund, less the expenses of administration.

Argued for the first parties—It was impossible to give effect to the whole deed, but the wife was a party to the contract, and she could not be heard to say that the children were not to get the fee of the policy, when the contract said they were to get it. Besides, under the contract there was a jus crediti in the children— Bushby v. Renny, June 23, 1825, 4 S. 112; Herries, &e. v. Brown, March 9, 1838, 16 S. 948; Wilson's Trustees v. Pagan, July 2, 1856, 18 D. 1096.