Scottish Court of Session Decisions

By antenuptial contract of marriage dated 17th March 1857, entered into between William Russell, merchant in Glasgow, and Marion Paterson, daughter of the late John Paterson, merchant in Glasgow, Mr Russell assigned a life policy for £1000 to the trustees therein named for the purposes therein mentioned, viz.—“That the said trustees shall hold the said certificate or policy of assurance for behoof of the said Marion Paterson, in case she shall survive the said William Russell, but in case she shall predecease him, then for behoof of the children, if any, of the said intended marriage; and after the sums of money therein contained shall have become exigible, shall pay over the said sums and the bonuses that may be due thereon to the said Marion Paterson, whom failing to the child or children of the said intended marriage, equally among them, or the survivors of them.” Mr Russell became bound duly to pay and report to the trustees the payment of the premiums. He further made over to “the said Marion Paterson, his promised spouse, in case she shall survive him, the whole household furniture, books, plate, and other household plenishing and effects of every description which now belong or shall at the time of his death belong to him, and that as her own absolute property.”

The conveyance of Mrs Marion Paterson or Russell was as follows, viz.—“For which causes, and on the other part, the said Marion Paterson hereby assigns, dispones, conveys, and makes over from her, to and in favour of the said William Russell, her promised husband, and his heirs and assignees whomsoever, all and sundry the whole means and effects, heritable and moveable, real and personal, now belonging or indebted and owing to her, … and all that she may acquire or succeed to during the subsistence of the said intended marriage, or that shall be belonging, owing, and indebted to her at the time of her death, with the exception of the provisions above made in her favour, and that as fully and effectually as if every particular of the said estate were herein particularly enumerated.”

Mr Russell died on 29th August 1884, survived by his wife and by a son and three daughters. He left a trust-disposition and settlement dated 29th August 1879, by which he conveyed his whole estate to trustees for the purposes therein mentioned. Upon the death of Mr Russell Mrs Russell obtained payment and delivery of the provisions in her favour in the said marriage-contract. By an agreement dated 7th and 10th November 1885 Mrs Russell agreed “that all her separate estate belonging to her at the date of her marriage with the said deceased William Russell, or acquired during the subsistence thereof, and estimated, so far as hitherto realised and invested, at the sum of £2000 or thereby, conform to detailed statement of investments submitted by her to the first party, should be held as forming part of the testamentary estate of the said deceased William Russell.”

On 28th August 1886 Mrs Russell died intestate, and her daughter Mrs Marion Agnes Russell or Gardiner was duly confirmed her executrix. A question arose as to the construction of the marriage-contract, and a Special Case was presented to the First Division of the Court of Session,

Page: 611↓

to which William Russell's testamentary trustees were the first parties; Mrs Marion Agnes Russell or Gardiner as executrix of her mother was the second party; John James Russell, the only son of the marriage, was the third party; and the daughters of the marriage were the fourth parties.

The parties of the first part claimed that they, as trustees and general disponees of the deceased William Russell, were entitled to the whole estate of which Mrs Russell died possessed (excepting the said provisions in her favour contained in the antenuptial contract), and that in virtue of the conveyance by her to her husband and his heirs and assignees contained in the said antenuptial contract, of all that should be belonging, owing, and indebted to her at the time of her death. The whole other parties maintained that Mrs Marion Paterson or Russell's estate fell either to be divided as intestate estate, and that her children as next-of-kin were entitled to the same, or alternatively that they were conditional institutes to their father under the destination in the said antenuptial contract, and as such entitled in their own right to the estate of their mother.

The judgment of the Court was craved on the following questions—“(1) Are the parties of the first part entitled to receive the estate of the said Mrs Marion Paterson or Russell (with the exception of the provisions in her favour in the said marriage-contract), and to administer the same as part of the estate of the deceased William Russell? (2) Does the estate of the deceased Mrs Marion Paterson or Russell fall to be administered as intestate estate, and to be divided accordingly among her children as her next-of-kin? Or (3) Are the third party and his three sisters conditional institutes under the destination in the said antenuptial contract, and as such entitled in their own right to the estate of their mother?”

It was argued for the first parties that the words of conveyance by the wife were quite distinct, and made clear her intention to make over three sorts of property to her husband—(1) all that she had at the date of the marriage; (2) all that she might acquire during the subsistence of the marriage; (3) all that should be belonging to her at the time of her death. The exception of the wife's provisions in the last case could have no meaning if her intention was to make over merely the acquirenda during the subsistence of the marriage. Cases where such a provision was sustained had occurred— Grant v. Grant, January 10, 1579, M. 3596. The case of Wardlaw v. Wardlaw's Trustees, July 7, 1880, 7 R. 1066, was distinguishable from the present case by the fact that in the conveyance by the husband, corresponding to the wife's conveyance, he made over to his wife one half of the acquirenda, and that what the wife conveyed was conveyed as out—with the jus mariti.

It was argued for all the other parties—(1) That the estate fell to be administered as intestate succession. In framing this deed a clause had evidently been omitted. In the conveyance by the husband the words “in case she shall survive him” were always inserted, and a clause similarly expressed had evidently been omitted per incuriam from the conveyance by the wife. There were a number of English cases in which the Courts had interpreted the language of the deed as indicating that the framer had intended that certain words which were absent should have been present— Dickinson v. Dillwyn, July 26, 1869, L.R., S Eq. 546; Carter v. Carter, July 31, 1869, L.R., 8 Eq. 551; approved in Edwards, December 6, 1873, L.R., Ch. App. 97. These views were adopted in Wardlaw v. Wardlaw's Trustees, supra. But at any rate, where such clauses were counterparts of each other, with the exception of a survivorship clause, that exception would not give a different meaning to the one clause from the other— Earl of Fife v. Mackenzie, March 14, 1795, Bell's Fol. Cas. 165; 6th March, 1797, 3 Pat. App. 549. Juridical Styles, ii., 204. (2) Further, it was argued that if the estate was not to be treated as intestate succession it went to William Russell's heirs and not to his assignees— Graham v. Hope, February 17, 1807, M. App. voce Legacy, No. 3; Bell v. Cheape, May 21, 1845, 7 D. 614; Morris v. Anderson, June 16, 1882, 9 R, 952; Halliburton, June 26, 1884, 11 R. 979.

At advising—