Scottish Court of Session Decisions

In 1853 Charles Wilson Murray was married to Mrs Mary Bayne Playfair or Murray. He died on 15th August 1873, survived by his widow and three daughters. By his will he bequeathed all his estate to his widow absolutely. One of his daughters, Miss Jane Anne Murray, was on 6th June 1876married to Mr William Gibson Bloxsom, and died on 24th April 1878. By her antenuptial contract of marriage she conveyed to trustees all estate and effects that belonged or should belong to her, for the liferent use of the spouses and the survivor of them, and for the children of the marriage in fee. She was survived by her husband and by two children. Mrs Murray died on 23rd August 1886, survived by two unmarried daughters, and by Mrs Bloxsom's children.

By the antenuptial marriage-contract between Mr and Mrs Murray the latter was to receive, in the event of her surviving her husband, a free liferent annuity of £150. It was further provided as follows—“The said Charles Wilson Murray in contemplation of the said marriage hereby binds and obliges himself and his foresaids to make payment to the child or children of the said intended marriage of the sum of Four thousand pounds sterling, and that at the first term of Whitsunday or Martinmas after his, the said Charles Wilson Murray's death, if he shall survive the said Mary Bayne Playfair, or at the first term of Whitsunday or Martinmas after her death if she shall survive him, with the legal interest thereof from the term of payment during the not-payment of the same: Declaring that in case there shall be two or more children of the marriage the sum payable shall be divisible among the said children in such proportions as the said Charles Wilson Murray may appoint by a writing under his hand at any time of his life, and failing such appointment, the same shall be divided equally, the lawful issue of such of the children as may have predeceased succeeding always to the shares to which their parents would have been entitled had they been in life, and until the said provisions shall have become payable, or until the said child or children shall be able to maintain themselves, the said Charles Wilson Murray hereby binds and obliges himself and his foresaids to aliment, educate, and maintain them in a manner suitable to their rank in society.” In security of this provision to his children and of the annuity to his wife, Mr Murray bound and obliged himself to assign a policy of insurance upon his life for £4000 to the trustees named in the deed. The deed then provided as follows—“And in the event of there being no children of the marriage, or of the child or children of said marriage predeceasing without lawful issue the last survivor of said spouses, then the sum or sums which may come into the hands of the trustees under said policy of assurance shall, after providing for said annuity, be held by them for behoof of the heirs and assignees of the said Charles Wilson Murray.”

On her part Mrs Murray assigned to the trustees all her property, heritable and moveable, then belonging or which should belong to her during the subsistence of the marriage, except the provisions therein made for her, for certain specified purposes. In regard to her property it was provided—“Declaring that after the death of both of said spouses the said trustees and their foresaids shall, in the event of there being only one child born of said marriage, or surviving at the death of the last survivor of said spouses, convey and make over said lands and heritages, and debts and sums of money, and other the said heritable and moveable estate and effects of the said Mary Bayne Playfair, to the said child; and in the event of there being more than one child born of said marriage, and surviving at the period of the death of the last survivor of said spouses, that the said trustees and their foresaids shall convey and make over said heritable and moveable estate to the said children in such proportions as the said Charles Wilson Murray may appoint by a writing under his hand at any time of his life, and failing such appointment the said trustees and their foresaids shall divide the same equally among said children, the lawful issue of such of the children as may have predeceased succeeding always to the shares to which their parents would have been entitled had they been in life; and in the event of there being no children born of said intended marriage, or of the child or children of said marriage predeceasing without lawful issue the last survivor of said spouses, then the said trustees and their foresaids shall convey and make over the said heritable and moveable estate of the said Mary Bayne Playfair to her own heirs or assignees.”

By her trust-disposition and settlement dated 6th May 1874 Mrs Murray directed her trustees—“( Second) I direct my said trustees and their foresaids to hold and apply, pay, divide, and convey the whole rest, residue, and remainder of my means and estate, heritable and moveable,

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real and personal, with the rents, profits, and produce thereof, to and for behoof of my lawful child or children, payable in such proportions and at such terms, and under such conditions and restrictions, as I may direct by any writing under my hand, whether the same be clearly probative or not, and failing such writing, then to my lawful children equally, the lawful issue of any predeceasing child being entitled to the interest which such child would have taken had it survived; declaring that the provisions, so far as in favour of or descending upon females, shall be purely alimentary, and shall be exclusive of the jus mariti and right of administration of any husbands they may marry, and shall not be affectable by their debts or deeds or the diligence of their creditors, and I direct and appoint my said trustees and executors to hold and apply the rents, interest, and other produce and income of my means and estate falling to each of my said children, or such part thereof as my said trustees may deem necessary and proper for the upbringing, education, clothing, and maintenance of the said children respectively, and to retain the capital in their own hands under the trust hereby constituted until they can pay it over to trustees under a marriage-contract, or otherwise appointed by my children respectively under trust, which shall prescribe that the said income and produce shall be alimentary for my said children, and the capital provided to their issue: Declaring that my said trustees and executors shall only be effectually discharged by the trustees under such last mentioned trusts.”

No appointment was made by Mr and Mrs Murray under either of these deeds.

On Mrs Murray's death in 1886 questions arose as to the administration of the one-third share of the funds under Mr and Mrs Murray's marriage-contract, and Mrs Murray's settlement, which was admittedly due to Mrs Bloxsom's children, who were in pupillarity. The amount of Mr Murray's life policy was £4000, the amount of the funds falling under the conveyance by Mrs Murray in her marriage-contract was £9352, and of those falling under her trust-disposition and settlement about £30,000.

This special case was presented for the determination of these questions.

The first parties to the case were Mr and Mrs Murray's marriage-contract trustees; the second parties were Mrs Murray's testamentary trustees; the third parties were Mr and Mrs Bloxsom's marriage-contract trustees; and the fourth party was Mr Bloxsom, as tutor and administrator-in-law for his children. A curator ad litem was appointed to Mr Bloxsom's children.

During the argument it was admitted that one-third of the fund of £9352 falling under Mrs Murray's marriage-contract fell to be administered by Mr Bloxsom for his children's behoof. As regarded the children's share of the £4000 under the life policy, the first parties, Mr and Mrs Murray's marriage-contract trustees, contended, as against the third parties, Mr and Mrs Bloxsom's marriage-contract trustees, that under the provisions of the marriage-contract that sum did not vest until the death of Mrs Murray in 1886, and that as Mrs Bloxsom had predeceased her mother it did not fall under the conveyance to her marriage-contract trustees. The first parties also contended, as against the fourth party, Mr Bloxsom, that they were entitled to administer the funds forming this share during the minority of Mrs Bloxsom's children, and to apply the income from time to time for their behoof.

As regarded the one-third of £30,000, the share of Mrs Murray's estate, the second parties, Mrs Murray's testamentary trustees, maintained that this fund did not vest in Mrs Bloxsom, and therefore did not fall under her marriage-contract. Further, that the terms of the destination to children conferred on those surviving the testatrix a mere alimentary liferent, and that although a share of the fee of the trust-estate might have vested in Mrs Bloxsom's children at Mrs Murray's death, the conditions as to administration by the marriage-contract trustees of any daughters marrying after the death of the testatrix could not be held to apply to the case of a predeceasing child who had married and left lawful issue, an event which was not contemplated or provided for by Mrs Murray in her trust-disposition and settlement. Mrs Murray's testamentary trustees therefore maintained that they were not entitled to pay over the fund to Mrs Bloxsom's trustees, or even to Mr Bloxsom, as tutor and administrator-in-law for his children, but were bound to administer the fund during the minority or until the marriage of the children, and to apply the income from time to time for their behoof.

The questions of law were these—“(1) Did a right to any portion of the proceeds of the policy on Mr Murray's life vest in Mrs Bloxsom? and if so, is that right carried by the conveyance in her marriage-contract? (2) Did a right to any portion of the funds settled by Mrs Murray in her part of her antenuptial contract on the children of the marriage vest in Mrs Bloxsom? and if so, is that right carried by the conveyance to the parties of the third part? (3) If Mrs Bloxsom did not acquire a vested right to a share of either the policy fund or Mrs Murray's marriage-contract fund, are the parties of the first part entitled to administer the shares of these funds, or either of them, falling to Mrs Bloxsom's children during the minority or until the marriage of the said children respectively? or are they bound to pay over these shares, or either of them, to the party of the fourth part as tutor and administrator-in-law for his children? (5) If not, do the terms of Mrs Murray's settlement, directing the trustees to pay the shares effeiring to her children to their respective marriage-contract trustees, entitle Mrs Bloxsom's marriage-contract trustees, the parties of the third part, to receive from Mrs Murray's testamentary trustees, the parties of the second part, the fee of one-third of the said fund falling to Mrs Bloxsom or her children, and to administer the same in terms of the trust under which they act? or otherwise (6) Are the parties of the second part bound to pay over the fee of said one-third share to the party of the fourth part as tutor and administrator-in-law for his said children? or are they entitled to hold and administer said share during the minority or until the marriage of said children respectively, and apply the income thereof from time to time for their behoof?”

Upon the question of the vesting of the £4000 fund it was argued by the third parties, Bloxsom's

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marriage-contract trustees—That it vested at latest on the dissolution of the marriage by the death of Mr Murray. That therefore it vested in Mrs Bloxsom, and was carried by the conveyance to her marriage-contract trustees. The case was the same as that of Wardlaw's Trustees v. Wardlaw, July 7, 1880, 7 R. 1070. With regard to the £30,000 fund—Mrs Bloxsom's children were entitled to one-third of this, or to £10,000, but Mrs Murray's settlement directed that when any of the children had trustees under a marriage-contract the money should be paid to and administered by them.

Argued for the curator ad litem to Mr Bloxsom's children with regard to the £4000 fund. Vesting was suspended until the death of the survivor of the spouses. The wife survived, and therefore there was no vesting till her death. As Mrs Bloxsom predeceased that date, the share never vested in her, but was carried direct to her children. The direction was to pay at the first term after the husband's death, or at the first term after the wife's death, “if she shall survive him.” Further, there was a destination over to the heirs and assignees of the settlor if the children of the marriage predeceased the survivor without leaving lawful issue— Young v. Robertson, February 11, 1862, 4 Macq. 314. With regard to the £30,000 fund, the distinction in Mrs Murray's settlement was between the children and their issue. There was no power to the trustees to hold the fund for the issue of children, but only for the children themselves. The fund should be paid to Mr Bloxsom as tutor and administrator-in-law for his children— Stevenson's Trustees v. Dumbreck, February 18, 1857, 19 D. 462—aff. February 11, 1861, 23 D. (H. of L.) 1, and 4 Macq. 86.

At advising—