Scottish Court of Session Decisions

David Louson of Springfield, town-clerk of Arbroath, died on 11th December 1858, survived by two children, Mary Ann Louson and Mary Duncan Louson. He left a trust-disposition and settlement executed shortly after the marriage of his daughter Mary Duncan in 1844, as after stated, in the fifth purpose of which he directed his trustees to invest on good security a sum of £1000 for behoof of his daughter Mary Duncan, and for which he had become bound in his marriage contract—“Taking the rights and securities therefor payable to themselves, in trust for behoof of the said Mary Duncan Louson in liferent, but for her liferent use allenarly, and to the child or children to be lawfully procreated of her body, equally among such children, if more than one, share and share alike, in fee, but failing of such child or children lawfully to be procreated of her body, then to her own heirs or assignees whomsover; but under this express condition and declaration, that the interest or annual produce of the said sum of £4000 so to be invested as aforesaid shall be payable to herself, the said Mary Duncan Louson alone, exclusive of the jus mariti of her present or any future husband: and that no part of the said sum of £4000, nor the interest nor annual produce thereof, shall on any account be affectable by the debts or deeds, legal or voluntary, of the present husband or of any future husband of the said Mary Duncan Louson, nor by the diligence of his creditors, his right of administration in respect of the said sum of £4000, and the interest or produce thereof, being hereby expressly excluded and debarred.” By the eighth purpose he directed them—“If any balance or residue of my means and estate, after being realised, shall remain after the sums above mentioned are invested, then I hereby order and direct such balance or residue to be invested for behoof of my said daughters, equally in liferent, and their children in fee, exclusive of their husbands’ jus mariti, in the terms and under the conditions particularly above expressed.”

Mary Ann Louson married a Mr Macdougall, and died on 3d June 1885. Mary Duncan Louson married James Anderson Dickson on 24th December 1844. At the date of this Special Case she was over sixty years of age, and her surviving children, one daughter and four sons, were all over twenty-one years of age, the only other children having died unmarried and intestate.

Mr and Mrs Dickson and their children maintained that they were entitled, as being the whole parties interested therein, to immediate payment of the one-half of the residue of the means and estate of the deceased David Louson provided to Mrs Dickson and her children in liferent and fee respectively, in terms of the testamentary writings, and they called on the trustees to pay over the amount to them (other than Mr Dickson), or to their nominees. The trustees maintained that they were bound to retain the amount until the death of Mrs Dickson.

In order to settle that question this Special Case was presented to the Court by the trustees of the first part, and by Mr and Mrs Anderson Dickson and their whole surviving children of the second part.

The question for the opinion of the Court was—“Are the parties of the first part bound, upon the demand of the parties of the second part, forthwith to pay over the said half of residue to the parties of the second part, or to their nominees?”

Argued for first parties—The truster had most carefully provided that his daughter's share of residue should be exclusive of the jus mariti of any husband she might marry. Mrs Dickson was only sixty years old. Her husband might die, and if she married again then the exclusion of her husband's jus mariti would have to be given effect. The truster evidently had this contingency in view. The following authorities— Kippen v. Kippen's Trs., Nov. 24, 1871, 10 Macph. 134; Bow v. Kilgour's Trs., Jan. 31, 1877, 4 R. 403; M-Lean's Trs. v. M'Lean, Feb. 23, 1878, 5 R. 679—were no doubt cases in which a wife in similar circumstances, as being the only person interested in the fund, had been held entitled to get it. But the principle had never been carried further than the case of a marriage-contract. They must then retain the fund till Mrs Dickson's death. Reference was also made to Martin v. Bannatyne, &c., March 8, 1861, 23 D. 705; Massey v. Scott's Trs., Dec. 5, 1872, 11 Macph. 173; Allan's Trs. v. Allan and Others, Dec. 12, 1872, 11 Macph. 216.

Argued for second parties—-They were entitled to get the funds now, inasmuch as they were the only persons interested. The contingency of Mr Dickson dying and Mrs Dickson marrying again at the age of sixty was farfetched. The Court would not sanction what was only protracting the operation of the trust without good ground, and against the beneficiary's wish. In Menzies v. Murray, March 5, 1875, 2 R. 507, the case was on all fours with this, except that there the Court dealt with a marriage-contract and not a trust-deed— Anderson v. Buchanan, June 2, 1837, 45 S. 1073; Hope, &c., March 15, 1870. 8 Macph. 699; Smith and Campbell, May 30, 1873, 11 Macph. 639; White's Trs. v. Whyte, June 1, 1877, 4 R. 786—were also referred to.