Scottish Court of Session Decisions

Upon 18th August 1862 William Simons (the first party) entered into an antenuptial contract of marriage with Miss Mary Montgomerie Neilson, who thereafter upon 19th August became his wife. By that deed William Simons made certain provisions in favour of his wife, in consideration of which she, “on the other hand, with consent of the said William Simons, assigned and disponed to and in favour of the said William Simons, and her, the said Mary Montgomerie Neilson, and certain other persons therein named, as trustees for the purposes therein mentioned, the whole estate whatsoever, heritable and moveable, real and personal, wherever situated, then belonging to her, the said Mary Montgomerie Neilson, or which she might acquire or succeed to during the subsistence of the marriage.”

The trust purposes were declared to be as follows—“(First) For payment of the expenses of carrying this trust into effect. (Second) For payment of the free yearly income of the said trust-estate to the said Mary Montgomerie Neilson during all the days and years of her life, exclusive of the jus mariti and right of administration of her said intended husband, and after her death for payment thereof to the said William Simons, in case he shall survive her, during all the days and years of his life, which income shall be purely alimentary, and shall not be assignable by her or him, or be affectable by her or his debts or deeds, or attachable by the diligence of her or his creditors: But providing always, and declaring, as it is hereby expressly provided and declared, that in the event of the said William Simons surviving the said Mary Montgomerie Neilson, and entering into a second marriage, the said life-rent above conceived in his favour shall thereupon cease and determine. (Third) On the termination of the liferent above conceived in favour of the said spouses, and in the event of there being issue of the said intended marriage, the said trustees shall pay or convey to the child or children then alive, and to the issue of any child or children who may have predeceased, reckoning such issue per stirpes, the capital of the said trust-estate so established by the said Mary Montgomerie Neilson, and that in such manner and in such proportions as the said Mary Montgomerie Neilson may have appointed by any writing under her hand, whether the said writing be probative or improbative; and failing such appointment, the said trustees shall divide and pay or convey the said capital amongst such children and issue, share and share alike: But reserving always, nevertheless, to the said Mary Montgomerie Neilson, in the event of her entering into a subsequent marriage, full power to provide for the husband and child or children of such subsequent marriage out of the estate hereby conveyed, to an extent not exceeding the just and equal half thereof. (Fourth) In the event of the said intended marriage being dissolved by the predecease of the said William Simons, and there being no child or children or their issue then alive, the said trustees shall pay over or reconvey to the said Mary Montgomerie Neilson the whole estate above conveyed. (Fifth) In the event of the said intended marriage being dissolved by the predecease of the said Mary Montgomerie Neilson, the said trustees shall, on the cessation of the liferent above conceived in favour of the said William Simons, in case of there being no child or children or their issue then alive, pay or convey the capital of the said estate to any person or persons whom the said Mary Montgomerie Neilson may have appointed to receive the same by any writing under her hand, and failing such writing, to her own heirs whomsoever.”

The said Mary Montgomerie Neilson by said deed accepted of the provisions in her favour in full satisfaction of all terce of land, legal share of moveables, and every other thing which she, jure relictœ or otherwise, could ask, claim, or demand from the said William Simons or his heirs, executors, or representatives by and through his death if she should survive him. The deed contained no acceptance by the first party of the provisions in his favour as in full of his legal rights, and his jus mariti was not excluded except as regards the income.

Mrs Simons died domiciled in Scotland on 30th December 1888. There were no children of the marriage, and Mrs Simons did not leave any writing except the said contract of marriage providing for the disposal of her estate. That estate consisted of property held by the trustees under the marriage-contract, and in addition certain property consisting of personal effects and investments which represented her savings from the income of the trust-estate, or sums given to her by her husband. The said income had been regularly paid to Mrs Simons during the subsistence of the marriage in terms of the second trust purpose, and the amount of said savings at the date of her death was £2004, 17s. 7d., to which her husband obtained confirmation as executor upon 29th April 1889.

The income of the trust-estate was after the death of Mrs Simons collected by the

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first party as sole surviving trustee, and remained in his hands as such when the special case was before the Court.

In August 1889 the first party entered into a second marriage, and thus the provision of a liferent of the trust-estate in his favour in substitution to Mrs Simons lapsed.

By the Married Women's Property (Scotland) Act 1881, which came into force on 18th July 1881, being subsequent to the date of the said marriage, it is provided as follows:—“Section 6. 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.”

The said Mrs Mary Montgomerie Neilson or Simons was predeceased by her father and mother, and the parties of the second part were her brothers and sisters, and descendants of brothers and sisters, and the marriage-contract and testamentary trustees of certain of them.

The first party, as an individual, claimed that he was entitled to payment as an individual of one-half of the moveable estate of his said wife, including therein both the estate settled under the contract of marriage, and the other estate of which she died possessed, on the alternative grounds either that he was a creditor on his wife's estate for that amount under the said Act, or that he was one of her own heirs whomsoever within the meaning of the destination of the said antenuptial contract.

The second parties maintained that the provisions of the statute referred to did not apply in the circumstances of the case, and that Mr Simons had no rights in or to his deceased wife's estate except under the contract of marriage, and that the brothers and sisters of the late Mrs M. M. Neilson or Simons and the descendants of her deceased brothers were entitled to the whole of her estate.

The following question of law was submitted to the Court—“Is the first party, as husband of the late Mrs Mary Montgomerie Neilson or Simons, or otherwise, entitled to one-half of her free moveable means and estate, inclusive of that portion thereof falling under her contract of marriage?”

Argued for first party—The sole purpose of the deed was to protect the estate against her husband or his creditors. The property remained the wife's, and the case was ruled by Fotheringham's Trustees, 16 R. 873. The only difference was that the husband here got a liferent of the trust-estate on his survivance, and conditionally upon his remaining unmarried thereafter, but he had now married. The trust did not effect a divestiture of the wife, and the liferent was a mere burden on the ownership which was in the wife at her death. The trust purposes were all either evacuated or fulfilled— Ramsay v. Ramsay's Trustees, 10 Macph. 120. Further, the sum of £2000 did not fall under the trust as acquirenda— Young, 12 R. 968.

Argued for second parties—The estate did not remain at the wife's disposal at her death. She had conveyed to trustees, who were to reconvey to her only in an event which did not happen, viz., the predecease of the husband. She was not the absolute owner in the sense explained in Fotheringham, for the estate was burdened with a liferent, and therefore the husband's jus relicti was excluded, the estate not being “separate estate.” The liferent, further, was alimentary, and so could not have been discharged by the husband if he had remained unmarried. This showed the property was not in bonis of the wife when she died, and the scope of the deed showed the fee was in her heirs, who would take as disponees— Inglis v. Inglis, 7 Macph. 435.

At advising—