Scottish Court of Session Decisions

Lord Justice-Clerk—The only substantial question here is as to the interpretation of sec. 3, sub-sec. 2, of the Married Women's Property Act 1881, and the question arises in this way. The late Mrs Gouk had the liferent interest in certain heritable property left by her husband, who died in 1875. Her daughter Mrs Scott had the fee. She enjoyed the liferent until her death in 1885. The Married Women's Property Act passed in 1881, and the question is, had it affected the rights of Mrs Scott, who received no rents until the death of her mother in 1885. Now, the words of the Act are—“In the case of marriages which have taken place before the passing of this Act … the provisions of this Act shall not apply, except that the jus mariti and right of administration shall be excluded to the extent respectively prescribed by the preceding sections from all estate, moveable or heritable, and income thereof, to which the wife may acquire right after the passing of the Act.” Now, the only difficulty arises as to the meaning of the words “and income thereof,” and as to how the clause applies to this case. If there had been no intervening liferent, there is no doubt that from 1875 to 1881 the daughter would have been in receipt of the income derived from the heritable estate, and her husband, under the law then in existence, would have been entitled to receive that income, and it would have been liable to all the consequences to which his own estate was liable. The question is, whether the passing of the Act deprived him of that right, and whether after 1881 the wife obtained that income free from his jus mariti and right of administration. Suppose Mrs Gouk had died just before the last term when the rents fell due before the passing of the Act, the husband's rights would not have been excluded as regards the rents falling due at that term. Were his rights excluded at the next term by the Act having passed between the two terms?

I think the exclusion of a husband's jus mariti and right of administration does not apply to any estate acquired before the passing of the Act or to the income thereof. I think that the position of estates acquired before the passing of the Act, and the husband's right to the income of these estates are not altered by the Act, and that we must answer the question submitted to us accordingly.

Lord Young—I am of the same opinion, and I think the law is as your Lordship has stated it. By the law of Scotland, before the Act of 1881, a husband had right to the administration of his wife's heritable estate, and to the income thereof. He had two rights over her heritable estate, while her moveable estate passed to him absolutely. Now, the wife of the husband in this case, who is bankrupt, became entitled to the fee of heritable estate in 1875, which, however, yielded no income to her as it was burdened with a liferent to her mother. Her husband was entitled, however, to admininister the estate in her interest as fiar, and as soon as it began to yield income irrespective of statute he could draw the rents or possess it himself. He could enter into possession if there were no leases, and if there were he could draw the rents. The idea of the Act stopping that, notwithstanding the words of section 3, does not commend itself to me. The husband might have possessed the estate for thirty years. The idea of the statute to my mind is this—“You, who have married a wife with heritable estate, shall not be affected by this Act. Your right is a right to administer the estate and to draw the income, and that which has existed heretofore is not to be affected by the Act. After the passing of the Act you must regard any heritable estate coming to your wife as a windfall upon which you had no right to calculate, and which you must take under the law then existing.” I cannot read the Act as meaning “estate heritable, and income thereof, falling to the wife after the passing of this Act.” The estate and the income thereof are joined together. Each year's rent is not a separate subject depending upon the terms of the leases.

Lord Rutherfurd Clark—I am of the same opinion.

Lord Lee—I had some difficulty about this question. I have come to the same conclusion as your Lordships. The exclusion of the jus mariti applies to all moveable estate acquired by a wife after the passing of the Act, but the question is, are the rents of heritable estate excluded as moveable estate falling to a wife after the passing of this Act? No doubt the clause admits of being read as applying to the income of heritable estate which comes to a wife after the passing of the Act, and not to the income of heritable estate which fell to her before the passing of the Act, and on that ground I agree with your Lordships as to the answer we should give to the question submitted to us.