Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paterson and Another (Wyllie's Trustees) [1891] ScotLR 28_855 (10 July 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0855.html
Cite as: [1891] ScotLR 28_855, [1891] SLR 28_855
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 855↓
Court of Session Inner House First Division.
[
Facts:
A person died in 1872 leaving a trust-disposition and settlement under which a share of his estate would vest in his eldest son upon his youngest child attaining twenty-four years of age, which happened on 30th April 1890. In 1874 his son by antenuptial contract of
Page: 856↓
marriage assigned to trustees all his property of every description “now belonging to him,” and among the purposes of the trust he mentioned the disposal of his share of his father's trust-estate. The assignation was duly intimated to his father's testamentary trustees. On 15th May 1890 one of his creditors used arrestments in their hands of the share of his father's trust-estate which had now vested. In an action of multiplepoinding at their instance in which the claimants were the marriage-contract trustees and the arresting creditor, it was held that the assignation in the son's marriage-contract included the spes successionis to the share of his father's estate, and that the claim of the marriage-contract trustees fell to be preferred to that of the arresting creditor.
The late John Wyllie, innkeeper, Irvine, died on 12th May 1872 leaving a trust-disposition and settlement of his whole estate, heritable and moveable, in favour of John Paterson, banker, Irvine, and others, as trustees by which they were directed, inter alia, upon the truster's youngest child alive attaining the age of twenty-four, to sell and dispose of the estate and divide the free proceeds thereof equally among his children one of whom was James Wyllie. The youngest child attained twenty-four years of age on 30th April 1890. By antenuptial contract of marriage entered into with his second wife Agnes Kerr, and dated 20th October 1874, James Wyllie conveyed to James Dickie, solicitor, Irvine, and others, as trustees, “All and sundry lands, houses, goods, gear, sums of money, effects, and property of every description, heritable and moveable, real and personal, now belonging or which shall be belonging to him at the time of his decease, with the whole writs and title-deeds of the heritable property, and the vouchers and instructions of the moveable means and estate, and all that is competent to follow thereon; and without prejudice to the said generality the said James Wyllie hereby assigns, conveys, and makes over to and in favour of the said trustees above named, and to the survivors or survivor of said trustees accepting and acting, and to the heirs of the survivor, all as aforesaid, a certificate or policy of assurance, No. 26.823, dated the 12th day of May 1874, effected by the said James Wyllie on his own life with the Scottish Provident Institution: … and the said James Wyllie has herewith delivered up the said certificate or policy of assurance to be kept and used by the said trustees as their own proper writ and evident; and the said James Wyllie hereby binds and obliges himself to execute and deliver all writs and deeds necessary for making the above general and special conveyance effectual, but the same is granted for the ends, uses, and purposes following, viz.— First, That the said trustees shall, after the death of the said James Wyllie, hold the properties in Fullarton Street and Bridgend of Irvine which formerly belonged to his deceased wife Mrs Margaret Gardner or Wyllie, and also the share to which he is entitled of the trust-estate of his late father John Wyllie, innkeeper, Fullarton Arms, Fullarton Place, Irvine, and all sums of money which may at the time be in bank at Irvine in connection with the said properties or estate, for behoof of his only child by his former marriage, Miss Margaret Gardner Wyllie, presently residing in Halfway, Irvine, and shall pay to her, or administer for her behoof, the whole annual income or produce thereof so long as she shall be in minority after his death, and upon her being married or upon her arriving at majority, whichever of these events shall first happen, they are hereby directed and appointed to make over and convey the whole of the said properties and the share of the said James Wyllie's father's estate and sums of money, so far as the same may be then unpaid or not conveyed, to and in favour of the said Miss Margaret Gardner Wyllie absolutely if they shall judge this expedient, or to trustees for her behoof, so that she may enjoy the liferent thereof only or in such other way as from her circumstances at the time they shall judge most prudent and expedient having regard always to any directions the said James Wyllie may leave thereanent, or as to the manner of settlement thereof on her by any writing under the hand of the said James Wyllie; and in the event of her dying without leaving lawful children, or the issue of such children, before receiving conveyances of the said properties or payment of the shares of the said James Wyllie's father's estate or other sums of money, or before the same shall have been settled upon her as above provided for, the said trustees are hereby directed and appointed to hold the same for behoof of the said Agnes Kerr in liferent for her liferent use only, in case she shall happen to survive the said James Wyllie and the child or children who may be procreated of the said intended marriage or of any other marriage which the said James Wyllie may afterwards enter into, equally among them in fee: … Second, The said trustees shall hold the said policy of assurance and proceeds and produce thereof, with the whole household furniture and other means and effects of whatever description the same may be belonging to the said James Wyllie, after payment of all his debts and the expenses of executing the trust, for the liferent use allenarly of the said Agnes Kerr in case she shall happen to survive him, and for the child or children who may be procreated of the said intended marriage or of any other marriage which the said James Wyllie may afterwards enter into, equally among them in fee.” In consideration of which provisions in her favour, Agnes Kerr disponed and conveyed “all sums of money and property of every description, heritable and moveable, real and personal, now belonging to her or which she may acquire by gift, mortis causa deed, or legal succession, to and in favour of the said James Wyllie in case he
Page: 857↓
shall survive her, but in the event of his predeceasing her the said whole property, heritable and moveable, which may belong to her shall be subject to any disposition or division thereof which may be made by her among the children of the said intended marriage, and in the event of there being no such children, or of their failure by death without leaving lawful issue, then the same shall go to and be divided among her own lawful heirs or assignees whomsoever, but this conveyance by her to the said James Wyllie shall be subject always to the liferent use and enjoyment of the said Agnes Kerr, secluding therefrom the jus mariti, right of administration, and any other right of the said James Wyllie.” In 1868 James Wyllie had borrowed £500 from Miss Jane Boyd, Montgomery Street, Irvine, and granted a bond and disposition in security in her favour. This sum he failed to repay, and in virtue of an extract of the registered bond with warrant thereon, Jane Boyd on 15th May 1890 used arrestments in the hands of John Wyllie's trustees, and raised an action of furthcoming against them. In consequence thereof these trustees raised an action of multiplepoinding against James Wyllie, his wife Mrs Agnes Kerr or Wyllie, James Dickie, solicitor, Irvine, as the sole surviving trustee under James Wyllie's marriage-contract, and Miss Jane Boyd, to have it determined who had right to James Wyllie's share of his father's estate.
James Dickie averred that “the said antenuptial contract of marriage was duly intimated to the trustees of the said John Wyllie on 1st March 1875 by the said James Dickie, as agent for the trustees under the said marriage-contract, of whom he was one. On that date the following entry was made in the sederunt book of the said trustees:—‘lst March 1875.—Antenuptial contract of marriage betwixt Mr James Wyllie and Miss Agnes Kerr, of date the twentieth day of October Eighteen hundred and seventy-four, produced and intimated to me as agent for the trustees of the late Mr John Wyllie.’ (Signed) ‘ Jas. Dickie, Solicitor, Irvine.’ The said intimation was at the same time communicated to the trustees of Mr John Wyllie, and a copy of the said marriage-contract was deposited with the papers of the trust. Further, at a meeting of the trustees of Mr Wyllie held on 3rd October 1889, at which Mr John Paterson and William Orr were present, Mr Dickie, the agent of the trustees, directed their attention to the said entry, and the minutes of the meeting bear with reference thereto—‘This entry had not been referred to since Mr Orr was assumed a trustee, and it was now brought to his knowledge so that the intimation to the trustees may be complete.’ The minute was duly signed both by Mr Paterson and Mr Orr. Mr Dickie, who directed the attention of the trustees to the said entry, and by whom the said minute was written, was then the sole surviving trustee under the said marriage-contract and he so acted in order to complete his right as trustee under the said marriage-contract. The said marriage-contract was also duly intimated by the trustees under the same to the Scottish Provident Institution on 25th February 1875.” He claimed to be ranked and preferred to the whole fund in medio.
He pleaded—“(1) The share of the estate of the said John Wyllie senior falling to the said James Wyllie under the foresaid trust-disposition and settlement, having been validly and effectually assigned by him to the trustees under the said antenuptial contract, and the said contract having been duly intimated, the right thereto is now vested in the claimant as the surviving and accepting trustee under that deed. (2) The pretended arrestment used by the said Jane Boyd in the hands of the trustees of the said deceased John Wyllie senior being posterior in date to the said antenuptial contract and intimations thereof, the same is inept and ineffectual, and did not attach or affect the foresaid share of the said estate or any part thereof.”
Miss Jane Boyd averred that “James Wyllie's antenuptial contract of marriage was not put on any public record, and was in every respect a latent deed. The trustees therein named did not accept office, and did not direct or authorise the alleged intimation thereof to John Wyllie's trustees to be made. No valid intimation of the conveyance contained in said marriage-contract was made to John Wyllie's trustees, and no de prcesenti conveyance of the funds arrested by the present claimant is contained in the said marriage-contract in favour of the trustees therein named. By the said marriage-contract the said James Wyllie only conveyed the estate now belonging or which should be belonging to him at the date of his death. The funds arrested did not belong to him at the date of said marriage-contract, and he was still living. That the share of the estate of John Wyllie falling to James Wyllie had now vested in James Wyllie, and was payable to him by John Wyllie's trustees. In respect of the arrestment used by her, she claimed as much of the fund in medio as would pay the sums due and resting-owing to her by James Wyllie under and in respect of said bond and disposition in security.”
She pleaded—“(1) The claimant being a creditor of the principal debtor, and having used arrestment in the hands of the arrestees, is entitled to be preferred in terms thereof. (2) The fund in medio having vested in, and being due and payable by the arrestees to the principal debtor at the date on which the claimant's arrestment was lodged, she is entitled to be ranked primo loco thereon in terms of her claim. (3) On a sound construction of the said antenuptial contract of marriage, the funds arrested are not conveyed thereby, and separatim, not so conveyed as to defeat the arrestment of the claimant. (4) Said contract of marriage not having been on record, or duly and validly intimated to the real raisers in the present action, and separatim., any intimation thereof having been made by party or parties not in
Page: 858↓
titulo to intimate it, the present claimant ought to be preferred and ranked in terms of her claim.
The Lord Ordinary ( Kincairney) allowed a proof, the import of which sufficiently appears from his Lordship's opinion, and thereafter on 7th March 1891 pronounced the following interlocutor:—“Finds that the share of the estate of the deceased John Wyllie, destined by his trust-disposition and settlement to his son James Wyllie, was effectually assigned to the trustees under the contract of marriage of the said James Wyllie, dated 20th October 1874, and that the assignation thereof was intimated to the pursuers, John Wyllie's trustees, before the date of the arrestments founded on by the claimant Miss Jane Boyd: Finds that the claimant James Dickie is sole surviving trustee under the said marriage-contract: Therefore ranks and prefers the said James Dickie as trustee foresaid in terms of his claim, and decerns, &c.
“ Opinion.—By his trust-disposition and settlement the late John Wyllie directed his trustees to convey a share of his estate to his son James Wyllie. John Wyllie died in 1872. Parties in this case are agreed that this provision vested and became payable on 30th April 1890, the vesting being postponed until that date in respect of a survivorship clause in the destination.
On 20th October 1874 James Wyllie and Agnes Kerr, thereafter his wife, entered into an antenuptial contract of marriage, whereby he conveyed, or purported to convey, to trustees all the effects then belonging to him or which should belong to him at the date of his death.
On 15th May 1890 Jane Boyd, to whom James Wyllie owed £500, used arrestments in the hands of John Wyllie's trustees, and brought a furthcoming, and John Wyllie's trustees have in consequence raised this action of multiplepoinding. The claimants are James Dickie, as sole surviving trustee under James Wyllie's marriage-contract, and Miss Boyd, who claims to be ranked on the fund for £500.
There is no question about Miss Boyd's claim.
The questions are (1) whether prior to her arrestment James Wyllie's interest in John Wyllie's estate had been effectually assigned to James Wyllie's marriage-contract trustees; and (2) whether, if so, that assignation was completed by intimation to John Wyllie's trustees before the date of the arrestment? If both these questions are answered in the affirmative, Miss Boyd's claim is excluded. If either were answered in the negative, she would be entitled to be preferred in terms of her claim.
With regard to the former question, it was contended (1) that James Wyllie's interest in his father's estate was not included in the conveyance to the trustees in the marriage-contract. The deed bears that James Wyllie conveyed all the effects then belonging to him, or which should belong to him at the time of his death. It was contended that this was not a conveyance of acquirenda, but a conveyance of the estate which belonged or might belong to James Wyllie at two specified dates—the date of the deed, and the date of his death—and in support of that contention the case of Champion v. Duncan, November 9, 1867, 6 Macph. 17, was referred to. It was maintained that the share of John Wyllie's estate could not be carried as estate belonging to James Wyllie at the date of the marriage-contract, because his right to it had not then vested, nor as estate belonging to him at his death, because he was and is still alive. I am inclined to regard the conveyance as equivalent to a conveyance of acquisita et acquirenda. The same words occurring in the marriage-contract under consideration in the case of Buchanan's Trustees v. Whyte, February 25, 1890, 17 R. (H. of L.) 53, appear to have been so regarded. Still, I think it would be difficult to hold that if this right was not carried at the date of the marriage-contract, it could be held to be carried at any later date—for instance, at the date of vesting—and accordingly that was not maintained by the marriage-contract trustee, whose contention was that it was carried at the date of the marriage-contract, and I have come to think that contention well founded.
At that date it is true that James Wyllie had no vested right to any part of his father's estate. His interest in it was of the nature of a spes successionis. But it was not disputed that as such it was assignable— Kirklands v. Kirkland's Trustee, March 18, 1886, 13 R. 798. An express assignation of a spes successionis would be effectual, and when duly intimated would place the assignee in the place of the cedent, entitled to be paid when the period of payment arrived. But in this case the spes successionis is not expressly mentioned. There is nothing but the general conveyance of the whole estate. That, I think, is capable of being construed as including a spes successionis, but could not in my opinion be held to do so according to its ordinary and primary import; and accordingly, if the question depended on the words of the conveyance to the trustees alone, I would have held that James Wyllie's share in his father's estate was not included.
But the marriage-contract trustees referred, and I think legitimately, to the purposes of the trust. It is provided by the first purpose that the trustees are to hold certain heritable property specified, and ‘also the share to which he (James Wyllie) is entitled of the trust estate of his late father John Wyllie,’ for the purposes specified; and by the second purpose it is provided that they are to hold a policy of insurance effected with the Scottish Provident Institution, which is specially conveyed, and the proceeds of it, with the household furniture, ‘and other means and effects, of whatever description the same may be, belonging to the said James Wyllie,’ for the said Agnes Kerr in liferent, and the children of the marriage in fee.
Page: 859↓
It was argued, and I think rightly, that these provisions show that James Wyllie intended to convey his share in his father's estate to his marriage-contract trustees, and meant to include that share under the general terms of the conveyance, either in the knowledge that his interest was only a spes successionis, or what seems more likely, because he supposed that he had or might have a vested interest in it. In either case, it appears to me that the conveyance of the whole effects belonging to him at that date would carry his interest in his father's estate, whatever it might be, if his intention that it should be so carried sufficiently appears from the deed itself. On the whole, on this point I think that the contention of the marriage-contract trustee, that James Wyllie's share in his father's estate was meant to be included, and was included, in the general conveyance to the marriage-contract trustees in the contract is well founded.
But it was contended (2) that the conveyance to the trustees was really as yet wholly ineffectual, because it was entirely testamentary and inoperative until the death of James Wyllie, the truster. I think there is difficulty about this point also, but I have come to the conclusion that it was intended to be operative from its date, and that the trust-disposition in the contract is not testamentary only. It has of course, like every marriage-contract, provisions regulating the succession to the estates; but the peculiarity which, as it appears to me, most favours the argument that the trust conveyance is only testa mentary is this, that there seem to be no trust purposes at all during James Wyllie's life. It is provided by the first purpose that the trustees shall after his death hold the heritable subjects specified and the share of his father's estate for the purposes specified. They are not directed or empowered to hold for him at all—in liferent, or fee, or otherwise—nor are they expressly directed to hold for anyone during his life. This strikes one as a singular peculiarity in a marriage-contract. But notwithstanding this peculiarity, I think that the deed must be regarded as being what it bears to be, a deed coming into operation, and having effect from its date. It is expressed in words of de prcesenti conveyance. The conveyance of Agnes Kerr's estate is not to trustees, but directly to James Wyllie, and there is no reason to question its immediate effect. The trust conveyance comprehends, besides the general estate, a policy of insurance on James Wyllie's life. This is conveyed to the trustees by the same words which convey the general estate, and in reference to it the deed bears that James Wyllie ‘has delivered up the said certificate or policy of assurance to be kept and used by the said trustees, as their own proper writ and evident.’ It is difficult to hold that the policy did not pass immediately by the conveyance, and difficult to hold that if it did, the same words of conveyance would not carry James Wyllie's whole estate. Considering the deed as a whole, I am of opinion that the conveyance to trustees was, according to its sound construction, a conveyance inter vivos which included James Wyllie's share in his father's estate. Analogous questions arose in the case of Buchanan's Trustees v. Whyte, where provisions in a marriage-contract which were held in this Court to be testamentary were held in the House of Lords to be operative from the date of the deed.
It was contended that the deed was ineffectual because undelivered. This argument was pressed somewhat anxiously, but I feel some doubt whether I have correctly apprehended it, because the deed is an onerous bipartite contract, effectual according to its true intent without delivery. Besides, I apprehend that intimation would operate as delivery. M'Lurgs v. Blackwood, 28th February 1860, M. 845, where an assignation intimated but otherwise undelivered was preferred to an arrestment. This question is therefore involved in the second general question, whether the assignation has been completed by intimation to John Wyllie's trustees.
(4) It was contended that the trust in the marriage-contract never came into operation or existence at all, and was a mere unreality or pretence. To this point the proof has in part been directed, and the result is easily expressed.
There were three trustees nominated, of whom two are dead, and James Dickie is the sole survivor. There was no written acceptance or meeting of trustees, no sederunt of the trust, no entry about that trust in Mr Dickie's books as agent of the trust. Nothing whatever was done in it unless it were the intimations after referred to. The reason was, as Mr Dickie explained, that the trustees had no duties and nothing to do during James Wyllie's life.
Mr Dickie depones that he prepared the marriage-contract on the instructions of James Wyllie, that one of the trustees—John Wyllie, the truster's brother—had expressed his willingness to act, and that he had reason to believe that the other trustee was communicated with by James Wyllie, who, however, has not been examined as a witness, I hardly know why. This is certainly a singular state of matters, but I do not see that the deed would be inoperative even if no trustees accepted. Whether a difficulty would arise as to intimation is a different question.
But, seeing that Mr Dickie prepared the marriage-contract as James Wyllie's agent, I am disposed to think that in the circumstances his acceptance of the trust is to be presumed, and that he is entitled to hold himself forth as a trustee, and as now the sole remaining trustee, under the marriage-contract, as he is now doing.
On these grounds I answer in the affirmative this first question, whether James Wyllie's share in his father's estate was effectually conveyed to his marriage-contract trustees?
The second question is, whether this conveyance was completed by intimation to John Wyllie's trustees before the date of Miss Boyd's arrestments?
Page: 860↓
There is annexed to the marriage-contract a docquet, dated 25th February 1875, signed by the secretary of the Scottish Provident Institution, acknowledging intimation of the contract. The docquet does not state by whom the intimation was made, but Mr Dickie depones that he made it on behalf of the trustees under the marriage-contract. He does not say that he got any instructions from anyone to do so. There is an entry about it in Mr Dickie's ledger under the name of Mr James Wyllie, and I rather think that he considered that his instructions to prepare the marriage-contract included authority to make the assignations in it effectual by the necessary intimations, and if he thought so, I think that in the circumstances of this case he was right.
It was not expressly maintained by Miss Boyd's counsel that the intimation to the insurance company was ineffectual. It is true that he had no concern with that intimation, but his argument seems to infer that it was inept. But I understand that such an acknowledgment by the debtor of intimation is probably the most ordinary way in which intimation is effected, or to any one in his right, and by which the assignee is effectually put in place of the cedent— Newton Company v. Collogan & Company, November 23, 1785, M. 850; Menzies' Lectures, 257.
There are two entries in the sederunt book of John Wyllie's trust which are referred to as proving intimation of the marriage-contract to John Wyllie's trustees. The one is dated 1st March 1875 [see supra]. It is averred that the intimation was made by ‘James Dickie, as agent for the trustees under the marriage-contract, of whom he was one,” and the acknowledgment bears to be by James Dickie, as agent for the trustees of John Wyllie.
The sederunt book of John Wyllie's trust seems to have been irregularly kept, and this entry appears to be somewhat out of its proper date. A great part of the evidence is devoted to an attempt to expiscate this irregularity, quite idly, I humbly think, because nothing turns on the exact date of this intimation, or of the entry, and I see nothing whatever suspicious about it. It is said, however, that this intimation was never communicated to John Wyllie's trustees. I do not think it necessary to inquire into this point, because the marriage-contract trustee points to another minute, dated 3rd October 1889, which bears that the agent directed attention to the prior entry, and proceeds—‘This entry had not been referred to since Mr Orr was assumed a trustee, and it was now brought to his knowledge, so that the intimation to the trustees may be complete.’ This minute is signed by Mr Orr and Mr Paterson, then the surviving trustees of John Wyllie. The minute bears that a copy of the marriage-contract had been deposited with the papers of John Wyllie's trust.
It thus appears that at all events at 3rd October 1889, which is early enough for the case of the marriage-contract trustee, the marriage — contract had been formally brought under the notice of John Wyllie's trustees.
It was contended that there could be no effectual intimation, because there were no trustees of James Wyllie who could make the intimation. But I do not concur in that argument. It is not essential that the intimation shall be by the assignee. Reference was made to the case of A v. B, 25th January 1540, M. 843, in which it was expressly decided that intimation by the cedent was sufficient, although there had been no intimation by the assignee; and I may notice that the statutory schedule of a notarial intimation appended to the Transmission of Moveable Property Act 1862, 25 and 26 Vict. cap. 85, does not bear on whose behalf the notary acted. Besides, I do not see any sufficient reason for denying to Mr Dickie the character of a trustee under James Wyllie's marriage-contract, and if he was a trustee he was in 1889 the sole surviving trustee.
I cannot distinguish between the intimation to the Scottish Provident Institution and the intimation to John Wyllie's trustees.
If I could hold that at the date of these intimations there was no trustee under the marriage-contract trust, there might be a difficulty of another kind, because it might be said that there was no assignee who could take in the place of the cedent. I think that any such difficulty might be overcome, but it does not arise if I am right in holding that James Dickie was a trustee.
It appears to me therefore that the effect of the conveyance and the intimation has been to place Mr Dickie, as sole trustee under James Wyllie's marriage-contract, as the creditor of John Wyllie's trustees, to whom they became bound to pay the share of the estate destined to James Wyllie when that share vested and was payable—that is on 20th April 1890.
It follows that Miss Boyd's claim, which is founded on the assumption that John Wyllie's trustees are debtors of James Wyllie and not of James Wyllie's marriage-contract trustees, falls to be repelled, and that these trustees are entitled to be preferred.
It does not follow from this judgment that James Wyllie's estate has been placed beyond the reach of his creditors by the marriage-contract. No question of that kind has been argued or could have been raised in this case. I am only anxious to make it clear that I do not indicate any opinion on that point.”
Miss Jane Boyd reclaimed, and argued—(1) James Wyllie did not in express terms assign the spes successionis to his father's estate. It was not included in the words “property now belonging to him”— Champion v. Duncan, November 9, 1867, 6 Macph. 17. The terms used in the assignation by the wife were in marked contrast. His silence as to the income during his lifetime was significant. (2) Such a spes would not have been attachable by creditors— Trappes v. Meredith, November 3, 1871, 10 Macph. 38, and could not pass
Page: 861↓
Argued for the marriage-contract trustee—The spes being a contingent right was assignable and had been assigned. This was put beyond a doubt by the words used as to the first purpose of the trust— Forrest v. Robertson's Trustees, October 27, 1876, 4 R. 22. The assignation had been duly intimated by the sole surviving marriage-contract trustee. The Lord Ordinary's opinion disposed of the objections stated by the reclaimer, and his judgment ought to be affirmed.
At advising—
James Wyllie was entitled to a certain share of his father's estate, but the parties are agreed that the right did not vest until the 30th April 1890. James Wyllie's marriage-contract was executed in 1874, while the right was still in spe, but it is settled law that an expectancy of this kind may be effectually assigned so as to give a valid title to the assignee when the right comes to be vested. The only question therefore is, whether upon the construction of this marriage-contract there is an effectual assignation of the expectant right in question? Now, the husband by the terms of the marriage-contract assigns and conveys to the trustees all the real and personal property of every description now belonging or which shall belong to him at the time of his decease. I cannot say that I altogether agree with the Lord Ordinary in thinking that that is a conveyance of acquisita et acquirenda in the ordinary technical signification of these words, because that would mean that the husband had given the marriage-contract trustees not only everything of which he was possessed at the date of the contract, and everything in addition which he might leave behind him at his death, but also anything which he might acquire in any manner of way during the intermediate period between the marriage and his death, so as to deprive himself of all right of property and all power of control over other property that might come to him during that intermediate period. I do not think that is the meaning of the conveyance. It is said that these words, which are of not infrequent occurrence, have a technical meaning in our law, but it appears to me that although their significance is perfectly well fixed, it is simply the natural meaning of the words, as words of ordinary language, and when the marriage-contract settles everything now belonging to him and also everything that shall belong to him at his death—he conveys exactly what he says—the property that belongs to him at the date of the contract and also what shall be found to belong to him at his death, but he does not deprive himself of any right of property or power of control in subjects he may acquire after the date of the marriage-contract during his lifetime, and accordingly the property which belongs to him at his death and which he has acquired after the date of the marriage-contract will be subject to all the debts which he may have contracted during his lifetime. Therefore it is quite indispensable that we should consider in this case whether the spes successionis now in question is carried to the marriage-contract trustees under the description of property belonging to the husband at the date of the contract, or only under the description of the property which shall be found to belong to him at the date of his death, because if the latter were the true construction of the words, then it would be impossible to sustain the right of the marriage-contract trustees in the meantime to carry off the fund to the exclusion of the husband's creditors. Now, that appears to me to be a question of construction which must be considered by the ordinary rules for construing a contract. It is said that the words “property now belonging to me” cannot cover any interest which is not vested at the time the granter of the deed is supposed to be speaking. It appears to me that the words are words of ordinary language and are quite effectual to cover any interest of the kind which it appears, upon the construction of the whole contract and of this clause taken with the context, the party intended them to convey. Now, it is clear enough that the husband in this case supposed himself to' be dealing with his interest in his father's succession as a right which he was entitled to dispose of, and in that respect he was perfectly right, because although it could not become finally vested in him until his survivance at a particular date, still it was a right which was undoubtedly subject to disposal.
Reading the purposes to which the trustees are to assign the subjects conveyed to
Page: 862↓
I therefore agree entirely with the Lord Ordinary in the conclusion at which he has arrived as to the meaning and effect of the marriage-contract; but there are a number of other points which have been raised, which his Lordship considers very minutely and carefully in his opinion, upon the effect of this contract, assuming it to bear the interpretation which he puts upon it. It is said, in the first place, that it has never been delivered, and I think the Lord Ordinary's answer to that is quite conclusive, because a mutual contract requires no delivery. But then it appears to have been argued, and it was also argued before us, that upon other grounds it was ineffectual as an assignation. It was said that the trustees had never accepted, and, as the Lord Ordinary puts it, that the trust was really never effectual upon that ground. Now, it does not appear to me necessary to consider at all the various grounds upon which the Lord Ordinary quite satisfactorily, I think, meets that argument, because there is one point which is very conclusive. It is of no consequence that the trustees accepted the trust so committed them, because it is quite certain the surviving trustee has now accepted it, and makes this claim in the performance of his duty for the purpose of making it effectual, and I cannot see how the question of the time at which the trust may have been accepted previously to the institution of this action has any bearing at all upon the question of its validity and effect now that we know that the trustees are seeking to enforce it. But then a third point remains,
Page: 863↓
Their claim, or rather the claim of the sole surviving trustee, is of course to hold the money for the purposes of the trust, and that is so expressed. No question was raised before us as to the right of the arresting creditor to any portion of the estate except the entire fee or capital of the right of succession, and therefore no question of that kind appears to arise, but it may be well to observe that nothing that is done by this judgment can affect in any way the right of the husband's creditors to the income coming due to him during his life. Of course the ground upon which we proceed is this — That he has effectually conveyed the fund to trustees for certain purposes. but that one trust purpose is during his own lifetime to make good the income of the estate to himself.
The Court adhered.
Counsel for the Pursuers and Real Raisers— Ure. Agents— Dove & Lockhart, S.S.C.
Counsel for the Claimant Miss Boyd (Reclaimer)— M'Kechnie— Craigie. Agent— James Russell, S.S.C.
Counsel for the Claimant James Dickie— Vary Campbell— Lorimer. Agents— Morton, Smart, & M'Donald, W.S.