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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Halkett and Others v. Penney [1890] ScotLR 27_551 (19 March 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0551.html
Cite as: [1890] ScotLR 27_551, [1890] SLR 27_551
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SCOTTISH_SLR_Court_of_Session
Page: 551↓
Court of Session Inner House Second Division.
[
v.
Facts:
A lady by her antenuptial contract conveyed all her property to trustees for, inter alia, payment to her of the annual proceeds during the subsistence
Page: 552↓
of the marriage; (3) for certain payments from the capital to her if required, saving and reserving the sum of £12,000, which was to remain invested during the subsistence of the marriage except in the event of advances to the issue of the marriage. These advances were limited to £1500 to any one child, and to £5000 in all. A jus quœsitum to the extent of £5000 was given to the children of the marriage, but their provisions were not to vest in them until majority or marriage. If she survived her husband without issue the trustees were to reconvey the whole trust funds to her or to her nominees, and if with issue the balance beyond £5000 if required. If the husband survived without issue he was to receive an annuity of £400, and, subject to said annuity, the trustees were to dispose of the trust funds as she might direct, if with issue he was to be paid the liferent of the whole trust funds subject to a power in the trustees to apply half thereof for behoof of said issue. A power of apportionment among the issue of the marriage was conferred upon the spouses jointly, and failing such joint apportionment upon the survivor.
Upon the failure of the trustees a judicial factor was appointed to hold the said trust-estate, which then amounted to £9000. There were five children of the marriage, a son who had attained majority, two daughters who had also attained majority, and to whom the advances to the extent of £1500 each had been made, and two sons in minority.
The wife, with the concurrence of her husband, and with the consent of the three eldest children, brought an action against the judicial factor and the two youngest children to have the judicial factor ordained to pay over to her the whole trust-estate less £2000, or to pay over so much of it as the Court should think right.
Ths Court held, that the trust-estate must be retained in the hands of the judicial factor during the subsistence of the marriage, and dismissed the action.
Colonel Frederick John Colin Halkett, 25 Charleville Road, West Kensington, London, and his wife Mrs Helen Margaret Fisher or Halkett were married to each other in 1857. There were five children of the marriage—a son now aged 28, two daughters, now aged 26 and 23 respectively, and two sons, aged 17 and 12 respectively.
By antenuptial contract of marriage to which her mother, Mrs Fisher, Bridgend, Perth, was a party, Mrs Halkett on her part disponed to trustees (1) all her estate heritable and moveable then belonging to her or which she might conquest; (2) all and whole her right and interest in the estate of the deceased James Fisher, her father; (3) all her rights and interest in the estates of John Fisher, Dunkeld, her grandfather, and Mrs Helen Fisher, her grandmother, and she bound herself to execute all necessary deeds for vesting the same in the trustees.
The purposes for which the trustees were to hold said trust funds were, inter alia—“ Second, For payment of the free annual interest or produce of the trust funds and estate to the said Helen Margaret Fisher during the subsistence of the marriage, such payment being exclusive of the jus mariti and right of administration of the said Frederick John Colin Halkett, and her own receipt being a sufficient discharge to the said trustees. Third, For payment assignation on conveyance at any time or times during the subsistence of the marriage, of such sums or such parts of the principal or capital of the trust funds and estate hereby conveyed in trust by her as aforesaid, to the said Helen Margaret Fisher, or to such person or persons as she shall by any writing or writings under her hand direct, saving and reserving the sum of £12,000 sterling, which sum is to remain vested in the said trustees under these presents, and for the purposes hereinafter set forth, and is not to be encroached on in any way during the subsistence of the marriage, except in the event of advances to the issue of the marriage out of said sum as after mentioned. Fourth, In the event of the said Helen Margaret Fisher predeceasing the said Frederick John Colin Halkett, and of there being no issue of the intended marriage then surviving, or in the event of there being such issue but such issue predeceasing him before attaining to majority or being married, the said trustees are hereby directed to pay the said Frederick John Colin Halkett, during the then remainder of his life, an annuity of £400, … and subject to the said annuity of £400, the said trustees are hereby directed to dispose or make over the residue of the trust funds and estate to such party or parties as the said Helen Margaret Fisher may direct by any writing under her hand, whether testamentary or otherwise, and failing such to her heirs, executors, or administrators, to be distributed by them according to the law of Scotland. Fifth, In the event of the said Helen Margaret Fisher predeceasing the said Frederick John Colin Halkett, and there being surviving issue of the intended marriage, the trustees shall pay over to the said Frederick John Colin Halkett during his life the free annual interest or produce of the trust funds and estate hereinbefore conveyed by the said Helen Margaret Fisher as aforesaid, or of so much thereof as shall for the time being remain vested in the said trustees: But it is hereby expressly provided that it shall be in the power of the said trustees, if they deem it advisable, to apply the said free annual interest or produce to any extent not exceeding one-half thereof, for behoof of the said issue, without paying the same over to the said Frederick John Colin Halkett… . Sixth, Notwithstanding the provisions of the free annual interest or produce of the trust-estate hereinbefore written in favour of the said Helen Margaret Fisher and Frederick John Colin Halkett, it shall be in the power of the said trustees at any time to advance to or for behoof of the child or children of the intended marriage,
Page: 553↓
for their outfit or advancement in life, a sum not exceeding in whole £5000, and such advances to or for the benefit of any one child not to exceed £1500, while three or more children survive. Seventh, In the event of the said Helen Margaret Fisher surviving both the said Frederick John Colin Halkett and the issue of the said intended marriage, the trustees shall dispone and make over to her or to such person or persons as she may direct by any writing the whole property or funds remaining vested in them in trust. Eighth, In the event of the said Helen Margaret Fisher surviving the said Frederick John Colin Halkett, and there be surviving issue of the marriage, the said trustees shall continue to pay to her the free annual interest or produce of the trust funds and estate, and she shall at any time be entitled to call on the trustees to set aside the sum of £5000 sterling out of the trust funds, to be retained for behoof of such issue, and also to call on the said trustees to pay or make over the balance of the said trust funds to her, or to such party or parties as she may appoint by any writing under her hand, and the said sum of £5000 shall be held by the said trustees for behoof of such issue, under the provisions herein contained, applicable to the issue of the said intended marriage; and should advances have been made to them under the sixth purpose of the trust, such advance shall be held to have been made out of or in satisfaction pro tanto of said sum of £5000, declaring that should the said Helen Margaret Fisher not call on the trustees to pay or make over the balance of the trust funds as above provided, or avail herself of this power only to a limited extent, the said trustees shall hold such balance, or any part of the trust funds and estate exceeding the said sum of £5000, for behoof of the issue of the said intended marriage, under the provisions herein contained applicable to such issue. Ninth, In the event of there being issue of the said intended marriage, and if such issue shall survive both parents, the trustees shall continue to hold any remaining trust funds and estate for behoof of such issue, and apply the same as they think proper for their support and education, declaring that it shall not be necessary that the sums so applied (if there be more children than one) be equal in amount, and on such children respectively attaining majority or being married, the said trustees shall pay over or denude of the said trust funds and estate in favour of such children in such proportions as the said Frederick John Colin Halkett and Helen Margaret Fisher may direct or appoint by any joint writing or writings under their hands, and failing such joint writing as the survivor of them by any writing or writings, testamentary or otherwise, may direct, and failing such direction or appointment, or so far as such direction or appointment shall not extend, the said trustees shall divide and make over the said trust funds and estate equally among said children.” None of the provisions in favour of children were to become vested in them until they respectively attained majority or were married.
The two eldest daughters each received out of the trust funds supplied by their mother the sum of £1500. No advance was made to any other child of the marriage.
In June 1888, upon the petition of the last of the trustees acting under said marriage-contract, who wished to resign, Joseph Campbell Penney, C.A., Edinburgh, was appointed judicial factor upon the said trust-estates. The said Mrs Helen Margaret Fisher or Halkett and her husband, with the consent and concurrence of their three eldest children, thereafter brought an action against the said judicial factor and the two youngest children of the marriage to have the whole trust property vested in the judicial factor under the conveyance by the said Mrs Halkett, over and above the sum of £2000 paid over to her, or such part of said trust funds as the Court should think she had a right to claim.
The trust funds in the factor's hands amounted to about £9000.
The pursuers pleaded—“(1) On a sound construction of the antenuptial contract of marriage executed by the pursuers, the female pursuer, with the consent of her husband, is entitled to take out of the trust her whole funds, under deduction of £2000 sterling. (2) On a sound construction of the said contract, the female pursuer, with consent of her husband and of her children Charles, Alice, and Edith, is entitled to take out of the trust-estate her whole funds, under deduction of such part thereof (to be ascertained in the course of the process to follow hereon) as may be sufficient to meet the rights of her children Hugh and Frederick.”
The defender pleaded—“(3) On a sound construction of the said contract of marriage, the pursuers are not entitled to diminish the trust-estate thereby destined for behoof of the children of the marriage, and the defender is entitled to be assoilzied from the conclusions of the action, with expenses.”
A curator ad litem was appointed to the two youngest children.
The Lord Ordinary ( Trayner) upon 19th July 1889 dismissed the action and found the defenders entitled to expenses.
“ Opinion.—The second purpose of the marriage-contract trust is for payment to Mrs Halkett of the free annual interest or produce of the trust-estate ‘during the subsistence of the marriage,’ exclusive of the jus mariti and right of administration of her husband. I regard that clause as not merely a direction for trust management, but a proper contract provision, whereby there was secured to Mrs Halkett so long as the marriage subsisted payment of the free proceeds of her estate—a provision intended to protect her against her own acts as well as the acts of others, and one which she cannot now revoke or renounce. The grounds upon which the learned Judges proceeded in the decision of the case of Menzies v. Murray, 2 R. 507, appear to me to have at least equal force and applicability in the present case.
Page: 554↓
The third purpose of the trust provides that a sum of £12,000 shall be held by the trustees, and ‘is not to be encroached on in any way during the subsistence of the marriage’ except in the event of advances out of that sum to the children of the marriage as provided for. Advances appear to have been made to the children to the extent of at least 3000. What the pursuers now propose is to take that £12,000, or what remains of it (practically the whole trust-estate), subject to a deduction of £2000, to meet further advances to the children into their own hands. I am of opinion that they are not entitled to do this, first, because it would be against the direct provision of the marriage-contract, and second, because it would defeat the provision in favour of Mrs Halkett under the second purpose of the trust.
If the pursuers obtained the decree which they seek, they would simply be setting aside their marriage-contract. This I think they are not entitled to do, nor do I think it is for their interest to do so.”
The pursuers reclaimed to the Second Division of the Court, and argued—This case was ruled not by the case of Menzies v. Murray, but by those of Ramsay v. Ramsay's Trustees, November 24, 1871, 10 Macph. 120, and Laidlaws v. Newlands, February 1, 1884, 11 R. 481. In the case of Menzies the wife had only a liferent, and no fee even after husband's death. Here, as in the two other cases, she had both the liferent and the fee. The argument that the trust must be kept up to protect the wife against her own acts was rejected in the case of Laidlaws. Who then were interested to oppose this proposed reconveyance? The children's jus qucesitum was limited to £5000, which, with the advances already made, would be secured by the judicial factor retaining £2000. The law would not keep up the trust to secure the husband's annuity in case he survived. Besides, the husband was one of the pursuers in this action.
Argued for the respondent—The third purpose of the trust was clear and distinct. To the extent of £12,000 the trust funds were to be kept in the hands of the trustees, and therefore now in those of the judicial factor during the subsistence of the marriage. This was an antenuptial contract of marriage in the interests of Mrs Halkett with the consent of her mother, and the general law that a wife, even with the consent of her husband, cannot revoke the trust and remove the protection secured by her marriage-contract was saved even in the case of Ramsay. The cases in point here were Torry Anderson v. Buchanan, June 2, 1837, 15 S. 1073; Hope, March 15, 1870, 8 Macph. 699; Menzies v. Murray, March 5, 1875, 2 R. 507. Here also there was a right of apportionment among the children reserved to the surviving spouse. That alone showed the trust must be kept up.
Counsel for the curator ad litem adopted the argument for the respondent, and contended it was for the interest of the two youngest children that the trust should be kept up.
At advising—
The Lord Ordinary has held that direction to be binding upon the trustees, so that neither by the wife's own act nor by her act in conjunction with her husband can the protection secured to her by the marriage-contract be removed during the subsistence of the marriage.
I concur with the Lord Ordinary in thinking the trustees are bound to continue to hold the trust funds during the subsistence of the marriage for the wife's protection. There is no clause modifying the provision. To the extent of £12,000 the trust funds provided by her are not to be encroached upon except for the one purpose of making advances to children.
So far I agree with your Lordship and with the Lord Ordinary, but I am not sure that the case of Menzies is so directly in point as the Lord Ordinary thinks it is.
The third purpose of this deed upon which we had a very full argument is as follows—[ Reads clause given above]. Now, no doubt one of the purposes after set forth is the wife's own liferent if she survived her husband. In the case of Menzies that was the purpose for which the trust was ordered to be kept up. Here there are other purposes for which the trustees must continue to hold the funds. I think the ninth purpose of the trust is conclusive of the question, for by it the survivor of the spouses has a power of apportioning the funds falling to the children.
I cannot therefore see how the trust can be fulfilled without the trustees holding the whole fund of £12,000, which the husband may allocate if he survives. On that simple ground I think the whole fund, must be retained in the hands of the judicial factor, although I think there is no jus quœsitum in the children beyond £5000.
The Court adhered, but allowed the expenses of the action to be paid out of the trust-estate.
Counsel for the Pursuers and Reclaimers— Comrie Thomson— Rhind. Agent— Wm. Officer, S.S.C.
Counsel for the Defender and Respondent— Jameson— Burnet. Agent— R. Stewart, S.S.C.
Counsel for Curator ad litem— Salvesen. Agents— H.B. & F. J. Dewar, W.S.