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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hogarth and Another (Fotheringham's Trustees) v. Fotheringham [1889] ScotLR 26_609 (28 June 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0609.html
Cite as: [1889] ScotLR 26_609, [1889] SLR 26_609
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SCOTTISH_SLR_Court_of_Session
Page: 609↓
Court of Session Inner House First Division.
v.
Facts:
The Married Women's Property (Scotland) Act, by its 6th section, gives to the husband of any woman who may die domiciled in Scotland the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate according to the law and practice of Scotland.
By antenuptial contract a woman conveyed her whole estate to trustees for behoof of herself, whom failing for behoof of her own representatives, or other parties that might be thereafter named by her, excluding her husband's jus mariti and right of administration, which were also expressly renounced by the husband in the deed. Some years after the marriage she died, domiciled in Scotland, survived by her husband and certain issue of the marriage, and possessed of certain moveable estate. Held—following Poe v. Paterson, 10 R. (H. of L.) 73—that the husband was entitled to one-third of the said moveable estate.
On 20th March 1877 John Fotheringham, farmer, Orrock, was married to Isabella Hogarth, Kirkcaldy. In contemplation of the marriage an antenuptial marriage-contract was executed between the intended spouses, which dealt solely with the wife's estate. By this deed she conveyed her whole estate, acquisita and acquirenda, to trustees, and she directed them to hold the same for behoof (1) of herself, whom failing (2) of her own representatives, or other parties that might be thereafter named by her. The husband's jus mariti and
Page: 610↓
right of administration were excluded by the deed, which also contained an express renunciation by him of these rights. Mrs Fotheringham died on 7th February 1888, domiciled in Scotland, and without having executed any writing disposing of her estate except the said contract. She was survived by her husband and five children.
She left no heritage, but her moveable estate in the hands of the trustees above referred to amounted to £5000. Her husband claimed one-third of this amount under the provisions of the Married Women's Property (Scotland) Act 1881.
As Mrs Fotheringham's trustees did not feel justified in meeting this claim without judicial authority, the present special case was presented to the Court, the first parties to which were the trustees above mentioned, and the second party was the said John Fotheringham.
The second party based his claim upon the alternative grounds—(1) That he was a creditor of his wife under the provisions of the Married Women's Property (Scotland) Act; or (2) that he was one of his late wife's legal representatives, and therefore that he was entitled to succeed to the said portion of her estate as one of her “representatives” within the meaning of the destination in the said antenuptial contract.
The first parties maintained that the second party had by his antenuptial contract discharged all his rights in or to his wife's estate, which they were bound to hold for the children of the marriage, who were the truster's own representatives.
The following question was submitted for the opinion of the Court—“Is the second party entitled to receive, and are the first parties bound to pay to him, one-third of the free moveable means and estate of the late Mrs Isabella Hogarth or Fotheringham?
By the 6th section of the Married Women's Property (Scotland) Act 1881 it is provided as follows:—“After the passing of this Act the husband of any woman who may die domiciled in Scotland, shall take, by operation of law, the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.”
Argued for the second party—The case of Poë v. Paterson, July 19, 1883, 10 R. (H. of L.) 77, practically determined the present case, as it was there decided that section 6 of the Married Women's Property (Scotland) Act applied to marriages contracted before the passing of the Act. All that the second party renounced in the marriage-contract was his jus mariti, which only existed during and terminated with the marriage. The language of section 6 was of the widest application, and there was no reason, as the second party had in no way contracted himself out of the Act, why its provisions should not apply. The object of the deed was to protect the wife's estate from the husband or his creditors stante matrimonio, and there was nothing to have prevented the second party accepting a legacy from his wife. His true position was that of a statutory creditor on her estate to the extent of one-third of the moveables— Poë v. Paterson, supra; Ramsay v. Ramsay's Trustees, November 24, 1871, 10 Macph. 120.
Argued for the first parties—Whatever rights the second party might have had under the Married Women's Property (Scotland) Act were renounced by him when he signed the marriage-contract. By so doing he gave up all right in his wife's moveable estate— Hume v. Watson, 5 Brown's Supp. 330. At the date of her death Mrs Fotheringham was not divested in favour of her trustees. The money was destined by the wife to her representatives, and these were her children, to the exclusion of the second party.
At advising—
Now, it follows from what we then decided that the 6th section of the Act can never operate except in cases in which the jus mariti of the husband had been excluded, because if this had not been effectually done then the wife could not have any moveable estate.
In the present case the position of Mrs Fotheringham during the subsistence of the marriage was simply this, she was absolute owner of her moveable estate, free of all liferents or burdens whatsoever. She could therefore have disponed of it as she chose. So standing matters, she died. Is her husband not entitled in these circumstances, under the provisions of the 6th section of the statute, to one-third of her moveable estate? It is of course incumbent upon the second party to establish (1) that there is moveable estate to which his right applies, and (2) that he has done nothing to discharge the right which he derives under the statute,
It appears to me that he has made out both these points. All that the second party renounced was his jus mariti and right of administration, but such a renunciation cannot exclude the operation of the 6th section of the statute.
I think therefore that the second party is entitled to prevail.
The Married Women's Property (Scotland) Act was passed some time after this antenuptial contract was executed, and the opening words of its 6th section are exceedingly comprehensive and quite clear. It provides that “after the passing of this Act, the husband of any woman, who may die domiciled in Scotland, shall take, by operation of law,” the benefits therein set forth. I think that the Act applies in all cases where a married woman
Page: 611↓
The Court answered the question in the affirmative.
Counsel for the First Party— Jameson— Hay. Agent— James Skinner, S.S.C.
Counsel for Second Party— Low— Cook. Agents— Wishart & Macnaughton, W.S.