Scottish Court of Session Decisions

By antenuptial-contract of marriage, dated 26th December 1854, entered into between William Dickson, accountant in Edinburgh, now deceased, on the one part, and the also now deceased Miss Eleanor Jane Somerville, afterwards Mrs Dickson, only child of the now deceased Colonel Somerville, and the said Colonel Somerville, on the other part, the said Colonel Somerville bsound himself to transfer and make over the sum of £8000 of the stock of 3 per cent. Consolidated Government Annuities to the trustees therein appointed, to hold the same for the “behoof of the said Eleanor Jane Somerville, and the said William Dickson, her intended husband, in lifesrent, for their and the survivor's liferent use allenarly, and the child or children of the said Eleanor Jane Somerville, or their issue in fee, in the terms after mentioned, … declaring

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that the trustees shall be bound and obliged to pay the free dividends, interest, or annual produce received for the capital sums invested in their names, regularly as the same shall be received, to the said Eleanor Jane Somerville during her life, upon her own receipt, notwithstanding her marriage, and after her death, to the said William Dickson in liferent, for their respective liferent uses allenarly, and as an alimentary fund, and the fee of the said trust-fund shall belong to the said children of this marriage, or of any subsequent marriage into which the said Eleanor Jane Somerville may enter, or their issue, subject to the powers of division and appointment before and after specified; whom failing, to such person or persons as the said Lieutenant-Colonel Henry Erskine Somerville may appoint; and failing any appointment by him, to his nearest heirs and successors whomsoever, and shall remain vested in the trustees agreeably to the directions contained in this contract; and the said fund shall not be attachable for the debts of the said William Dickson or Eleanor Jane Somerville, nor affectable by the diligence of their or either of their creditors, and the orders, receipts, and discharges of the said parties respectively, as above provided, shall alone be sufficient discharges to the trustees; but under this provision, that notwithstanding the above destination it shall be in the power of the said Eleanor Jane Somerville, in the event of her having no children, or if they all shall predecease her without leaving issue, to dispose by will or testamentary deed executed by her of any part of the said trust-funds not exceeding £4000 sterling.” The said sum of £8000 was transferred by Colonel Somerville to the trustees.

Colonel Somerville died on 7th March 1863, leaving a trust-disposition and settlement dated 3d February 1852, with relative codicils by which he disposed of his estate. After his death there was found in his repositories a postnuptial contract of marriage entered into by him and Mrs Eleanor Dixon or Somerville his wife, dated 13th August 1818, by which his whole estate was to go, after the death of the spouses, to the child or children of the marriage. On becoming aware of the existence of this deed Mr and Mrs Dickson claimed right to the whole estate left by Colonel Somerville. In order to settle this question an action of multiplepoinding and exoneration was raised by Colonel Somerville's trustees, in which appearance was entered for Mr and Mrs Dickson, who lodged a claim wherein Mrs Dickson, as the sole surviving issue of the marriage between Colonel Somerville and his wife, claimed to be ranked and preferred (1) to the whole fund in medio, in terms of the provisions of the said postnuptial contract of marriage between her said parents: or (2) to one-half of the fund in medio, in so far as the same consisted of the free moveable estate of Colonel Somerville as legitim.

By interlocutor dated 20th July 1864 Lord Barcaple (Ordinary), before whom the action depended, found that it was ultra vires of Colonel Somerville to revoke the said postnuptial marriage-contract, and that in terms of said contract Mrs Dickson was entitled to the whole free estate belonging to her father at his death. A reclaiming note was presented against this interlocutor, and on 3d March 1865 the Second Division recalled the interlocutor, found that the said contract of marriage was intended to take effect, and could only take effect, in the event of Colonel Somerville predeceasing his wife; and that having survived his wife, he had full power still to settle his succession notwithstanding the said marriage-contract, and that his succession fell to be regulated by his trust-disposition and settlement and codicil. With these findings their Lordships remitted to the Lord Ordinary to proceed further in the cause. An appeal was then taken to the House of Lord, and on 16th May 1867 the judgment of the Second Division was affirmed.

The case is reported as Somerville's Trustees v. Dickson and Others, March 3, 1865, 3 Macph. 602; affd. May 16, 1867, 5 Macph. (H, L.) 69.

The case having come back from the House of Lords, and procedure thereon having been resumed in the Court of Session, Lord Barcaple, on 19th November 1867, pronounced the following interlocutor:—“The Lord Ordinary,“&c.—“Finds that there are no grounds on which it can be held that the provisions made by Colonel Somerville for Mrs Dickson in the antenuptial contract of marriage between her and Mr Dickson were in full of her claim of legitim: Finds that she is not barred by the acceptance of these provisions for claiming legitim: Finds that these provisions do not fall to be imputed to account of or in extinction of her claim for legitim: Finds that Mrs Dickson was entitled to one-half of the free moveable estate of Colonel Somerville at the date of his death as legitim, and appoints the raisers within fourteen days to give in a state of the moveable property of the truster, brought down to this date.”

Mr Dickson died on 31st May 1881, and Mrs Dickson on 16th May 1886, without issue. She left a trust-disposition and settlement dated 21st October 1880, and registered in the Books of Council and Session, 25th May 1886, whereby she disponed to William Finlay and others, her trustees, her whole property, heritable and moveable, including the said sum of £4000 sterling, of which she was entitled to dispose in virtue of the said provision in her said contract of marriage, and whatever part of the sum of £8000 of the stock of the three per cent. Consolidated Government Annuities she was or might be entitled to in the name of legitim as the only child of the said Henry Erskine Somerville who survived him.

Upon Mrs Dickson's death her testamentary trustees claimed (1) the proportion of the half-year's dividend on the said £8000 of stock corresponding to the period from the 5th day of January to the 16th day of May, both 1886; (2) the sum of £4000 sterling, part of the stock of which she had the power of disposal under the provisions of the said contract of marriage; and (3) one-half of the balance of the said stock or proceeds thereof, as part of the legitim falling to her as the only child of the said Henry Erskine Somerville who survived him.

James Law and others, Colonel Somerville's trustees, disputed the third branch of this claim, and accordingly James Cunningham Grahame and others, Mr and Mrs Dickson's marriage-contract trustees, raised an action of multiplepoinding to determine the rights of parties.

Mrs Dickson's testamentary trustees, inter alia,

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pleaded—“(2) Mrs Dickson having been entitled, in terms of her marriage-contract, to dispose by, testamentary deed of £4000 of the said £8000stock, and having disposed thereof by her trust-disposition and settlement, the claimants are entitled thereto, with interest. (3) Mrs Dickson being entitled to legitim, and the balance of the said sum of £8000 stock being part of the free moveable estate of her father, one-half thereof vested in her as legitim, and now belongs to the claimants. (4) It is res judicata and separatim, the result of a sound construction of Mrs Dickson's marriage-contract, that the acceptance by her of her marriage-contract provisions, including the power of disposal, did not exclude her right to legitim.”

Colonel Somerville's trustees pleaded—“(1) On a sound construction of her contract of marriage, Mrs Dickson was barred by the principle of approbate and reprobate from both exercising the power of testamentary disposal conferred upon her by the deed, and claiming her legitim against the deed, and having exercised her power of disposal, her trustees' claim to legitim should be repelled. (2) Separatim, on a sound construction of her marriage-contract, and her father's trust-disposition and settlement and codicils, Mrs Dickson was barred from both claiming her legitim and also exercising her power of appointment or testamentary disposal under her marriage-contract; and she having elected to take her legitim, her trustees are entitled to one-half of the fund in medio as legitim, but to no part thereof under her pretended exercise of her power of testamentary disposal. (3) In any event, one-half of the remaining half of the fund in medio, which was not subject to Mrs Dickson's power of testamentary disposal, falls into dead's part of Colonel Somerville's estate, to which the claimants, as his testamentary trustees, are entitled.”

On 25th January 1887 the Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Repels the first and second pleas-in-law for the claimants James Law and others: Sustains the pleas-in-law for the claimants William Finlay and others, and the third plea-in-law for the claimants James Law and others: Banks and prefers the claimants William Finlay and others (1) to the proportion of the half-year's dividend on the £8000 stock corresponding to the period from 5th January 1886 to the 16th day of May 1886, being the date of Mrs Dickson's death; and (2) to the sum of £4000 sterling of the proceeds of the said £8000 stock; and ranks and prefers the claimants the said William Finlay and others, and the claimants the said James Law and others, each to one-half of the balance of the fund in medio and dividends accrued thereon, under deduction of the expenses of the real raisers and of the expenses after mentioned, and decerns.

“ Opinion.—The only question in controversy between the parties is that which is raised by the third branch of the claim for Mrs Dickson's trustees, where they claim, on account of legitim, one-half of such portion of the sum of £8000 held by Mrs Dickson's marriage-contract trustees, as may have fallen into the residue of Colonel Somerville's estate.

“By the marriage-contract in question, Mrs Dickson's father, Colonel Somerville, put £8000 into the hands of trustees for behoof of the spouses in liferent, for their and the survivor's liferent use allenarly, and of the children of the marriage in fee, with a declaration that, failing children, the fee should belong to such person or persons as Colonel Somerville might appoint; and failing any appointment by him, to his nearest heirs and successors whomsoever. But it was further provided, that notwithstanding this destination of the fee, Mrs Dickson, in the event of her leaving no children, should have power to dispose by will of any part of the trust-funds not exceeding £4000. Mrs Dickson, who survived her husband, died without issue; and she has left a trust-disposition and settlement, by which, inter alia, she has disposed of the sum of £4000, on which she was entitled to test, and also of whatever part of the said sum of £8000 she may be entitled to in name of legitim, as the only child of Colonel Somerville who survived him.

“Colonel Somerville's trustees maintain that she is barred, by the principle of approbate and reprobate, from exercising the power of testamentary disposal conferred upon her by the marriage-contract, and at the same time claiming legitim against that deed; and that as she has in fact exercised her power of disposal as to the sum of £4000, her trustees' claim to legitim out of the other must be repelled. They do not dispute, however, that, notwithstanding the provisions in her favour contained in her marriage-contract, Mrs Dickson became entitled to legitim at her father's death; and, indeed, this has been already determined by a final judgment pronounced by Lord Barcaple in 1867. The only question, therefore, is whether any part of the £8000 falls into the legitim fund; or, whether Mrs Dickson, although she is not barred by the marriage-contract from claiming legitim generally, may not be barred from claiming any part of the fund settled by that deed otherwise than upon the rights given by the deed itself, and in strict accordance with its provisions.

“It appears to me that there is nothing in the marriage-contract, taken by itself, to raise a plea of approbate and reprobate, or to compel. Mrs Dickson to elect between inconsistent rights. Her father settles money that is absolutely his own, and to which she had no right whatever independently of his gift. The question of election, therefore, could not arise until she came to claim legitim upon his death. When that claim was brought forward, she might have been put to an election, if it could have been maintained successfully that her marriage-contract provisions were intended to be in lieu or in satisfaction of legitim. But the contrary has been decided by. a judgment that is admitted to be unimpeachable. I think it follows that any part of the funds in the hands of the marriage-contract trustees which may have fallen into the residue of Colonel Somerville's estate must suffer a division, like the rest of the free moveable estate, between dead's part and legitim; and Mrs Dickson must be entitled to her share, because it is decided that she was entitled to legitim. The judgment sustaining her right to legitim means that she was entitled to one-half of the entire moveable estate left by Colonel Somerville, after providing for his debts; and it is now certain, in consequence of her death without issue, that the

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£4000 held by the marriage-contract trustees was in fact a part of Colonel Somerville's moveable estate at his death.

“It is said that the right to test with regard to one-half of the £8000 was given to Mrs Dickson on condition of her abstaining from making any claim to the remaining half. But this is a misconception of the legal effect of the marriage contract. It is in no proper sense of the term a condition of the benefits given to Mrs Dickson, that she shall not disturb the other provisions of the contract. There was no legal right in her which could enable her to disturb them. But the provision applicable, in the event which has happened, to the £4000 in question is, in effect, that it shall fall into the general estate of Colonel Somerville. In other words, it is not disposed of by the marriage-contract, but by Colonel Somerville's testamentary settlement; and it is this disposition by testament, and this alone, which Mrs Dickson's right of legitim enables her to challenge. She can claim no part of the £4000 without claiming against the testamentary settlement, and therefore forfeiting the liferent bequeathed to her by that deed. But she makes no claim against the marriage-contract. The argument that the claim now made by her trustees, in accordance with her will, involves a claim against the marriage-contract, appears to me to proceed upon two false assumptions—First, that the £4000 which has fallen into residue is disposed of by the marriage-contract, instead of by the testament; and, secondly, that the marriage-contract expresses or implies an intention that the benefits given to Mrs Dickson should be taken in lieu of legitim.”

Colonel Somerville's trustees reclaimed, and argued that Mrs Dickson was not entitled both to claim legitim and also to test upon this£4000. The provision conferring on her a power of disposal was either testamentary, or part of the marriage-contract. If it was testamentary she was barred from testing by having elected to take legitim; if it was part of the contract, then the doctrine of approbate and reprobate applied. She could not unconditionally exercise the power conferred by the contract, and at the same time uphold the contract which only conferred that power subject to a condition— Kern v. Wauchope, 5th May 1819, 1 Bligh 1. She must take the power as qualified. The plea of res judicata did not touch this question, for Colonel Somerville's trustees never denied that Mrs Dickson was entitled to legitim, and that was all that Lord Barcaple's judgment decided. He never had before him the question as to the power of disposal—D. xliv. 2, 7, sec. 4, de except, rei jud.

It was argued for the respondents that the power to dispose was not a testamentary provision, but was one of the considerations of the marriage-contract. It was an onerous consideration, for an absolute right to dispose might be used during lifetime as a fund of credit— Hyslop and Others v. Maxwell's Trustees, Feb. 11, 1834, 12 S. 413, per Lord Corehouse. There could be no question of approbate and reprobate here; for to raise that question a testator must test upon something on which he has no right to test. That was not the case here, and accordingly the doctrine of Kerrs v. Wauchope, supra, did not apply. The provision was a part of the marriage-contract, and consequently the question was res judicata.

At advising—