Scottish Court of Session Decisions

At Stirling on 20th December 1889 David Peddie and Williamina Gardiner Gibb were married to each other by declaration and warrant of the Sheriff-Substitute. At Edinburgh on 5th February 1890 Mr and Mrs Peddie went through a second ceremony of marriage after banns according to the forms of the United Presbyterian Church.

On 4th and 5th February, before the second marriage ceremony, the spouses executed a mutual deed or contract of marriage in favour of trustees.

By this deed the husband conveyed to the trustees the whole means and estate which should belong to him at the time of his death, for the following purposes—(1) For payment of his debts and the expenses of executing the trust; (2) that the trustees should pay his wife £50 for mournings; (3) that they should hand over to her his household furniture and plenishing; (4) that they should hold the residue of his estate and pay the free annual income to his wife for the maintenance of herself and the children of the marriage, with power to the trustees to pay the wife the whole or any part of the capital if they should consider the annual income insufficient; (5) that after the death of the wife they should hold the residue and divide it among the children of the marriage on the youngest attaining the age of twenty-one; and (6) if the husband should die without issue of the marriage, that they should convey the residue absolutely to the wife.

By the marriage-contract the wife on her part conveyed to the trustees her share or interest in the estate of her father under his trust-disposition and settlement, and all other property, heritable and moveable, which then belonged to her or which she might acquire during the subsistence of the marriage, with the exception of money legacies of sums not amounting to £200. The trustees were to hold the trust-estate for the following purposes—(1) That after payment of expenses the trustees should pay over the free annual proceeds to the wife herself, full power being reserved to her to dispose of the whole or any part of the trust-estate by mortis causa deed; (2) that in the event of the husband predeceasing the wife, if there should be children of the marriage the trustees should continue to pay her the free annual proceeds, but if there should be no children the trustees should pay over to her the capital of the whole trust funds; (3) that in the event of the wife predeceasing the husband and leaving issue, the trustees should pay the husband during his life the free annual proceeds of the whole estate, under this restriction, that in the event of there being children of the marriage who should attain majority, these children should be entitled to be paid one-half of their share of the capital of the trust funds, it being declared that the capital was eventually to be divided among the children of the marriage; (4) that in the event of the death of the wife without leaving issue, the estate was to be divided into two equal portions, one-half to be subject to the directions in any mortis causa deed left by the wife, the other half to be paid absolutely to the husband.

The trustees nominated in this postnuptial contract of marriage accepted office. They received and invested Mrs Peddie's share of her father's estate, amounting to £1317, 16s. 7d., and concurred in granting a discharge to the latter's trustees. There was no other estate in the hands of the trustees under the marriage-contract.

About six months after the marriage Mr and Mrs Peddie became desirous to revoke the marriage-contract. They maintained that the said deed was revocable, and called on the trustees to reconvey the trust-estate absolutely to Mrs Peddie, offering them a full discharge of their intromissions. The trustees doubted whether the said deed was revocable by Mr and Mrs Peddie, and whether they were in safety to denude and reconvey as requested.

In these circumstances a special case was presented to the Second Division of the Court of Session, the parties thereto being (1) the husband, (2) the wife, and (3) the marriage-contract trustees.

The questions of law were—“1. Whether the said first and second parties can validly revoke the said deed of 4th and 5th February 1890? 2. Whether the third parties are bound or in safety, on a deed of revocation as aforesaid being duly executed, to reconvey the trust-estate absolutely to the second party?”

Argued for the first and second parties—The purpose and every provision of the deed was testamentary. The whole estate in the hands of the trustees belonged to the wife. She had full power under the deed to dispose of the trust-estate mortis causa. The husband got absolutely nothing except a testamentary liferent, and even that might be taken from him. There being no other beneficiaries in existence, and the trust being practically unilateral, it was able to be revoked by the wife— Anderson v. Buchanan, June 2, 1837, 15 S. 1073; Low v. Low's Trustees, November 20, 1877, 5 R. 185; Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027; Hamilton's Trustees v. Hamilton, July 9, 1879, 6 R. 1216; Melville v. Melville's Trustees, July 15, 1879, 6 R. 1286.

Page: 338↓

Argued for the third parties—The deed was irrevocable. The provisions contained in it were reasonable. The deed created a trust. There was no clause in the deed allowing revocation. Delivery had followed in this case. The trustees were bound to protect the posterior interests of the children to be born of the marriage, who were entitled to the trust-estate presently in the hands of the trustees unless the wife disposed of it otherwise by will—Fraser's Husband and Wife, ii. p. 1503, and cases there quoted; Smitton v. Tod, December 12, 1839, 2 D. 225; Allan v. Kerr, October 21, 1869, 8 Macph. 34; Menzies v. Murray, March 5, 1875, 2 R. 507; Low v. Low's Trustees, supra.

At advising—