Scottish Court of Session Decisions

The averments and arguments appear sufficiently from the opinion of the Lord Ordinary ( Kincairney). He pronounced the following interlocutors:—“ 12th January.—Finds that the fund in medio is the sum payable under the policy libelled: Finds that the said sum was duly paid to the trustees to whom it was destined by the policy, and that the claimant Mrs Mary Stewart Davidson or Dickie, widow of the deceased, is entitled to payment thereof: Finds that the executor-dative of the deceased has no right or title to the sum due under the said policy: Therefore repels his claim, and ranks and prefers the said Mrs Mary Stewart Davidson or Dickie on the fund in medio, in terms of her claim, and decerns,” &c.

“12 th January.—Finds the claimant Andrew Borland Dickie liable in expenses to the claimant Mrs Mary Stewart Davidson or Dickie,” &c.

Opinion.—The fund in medio in this multiplepoinding consists of the proceeds of a policy of insurance on the life of the late Rev. Matthew Dickie, United Presbyterian minister, Alva, who died intestate on 20th August 1890. The fund is claimed (1) by his executor-dative, and (2) by his widow. The policy was effected on 16th December 1887, and the sum insured was thereby stated to be payable to certain persons (who are the real raisers), ‘as trustees and trustee for behoof of the widow of the said Rev. Matthew Dickie, in liferent allenarly, and his children or the survivors of them, whom failing his widow, whom all failing his own nearest heirs whomsoever in fee, subject to such declarations as to the terms of payment and vesting as the said Rev. Matthew Dickie may appoint by any separate writing under his hand.’ There were no children of the marriage, and therefore the sum in the policy was made payable by the trustees to the widow, and she claims it in respect of the destination.

The other claimant, the executor-dative of the deceased, avers that the deceased kept the policy in his own repositories, and did not intimate it to the trustees; and he further avers that Mr Dickie was insolvent when he effected the policy, continued to be so, and was insolvent when he died. I assume the truth of these averments.

It was maintained for the widow that the trustees were in right of the fund in respect of the special destination without making up any title to it, and that they were bound to pay it to her, and that the executor-dative had no title to demand it. The claimant's pleas do not appear aptly framed to support that argument, but they may, I think, be stretched to cover it, and it appears to me to be well founded. Assuming that the sum in the policy was in bonis of the deceased at his death, still it was destined to trustees for a specified purpose, and it could not, I apprehend, be taken up by the executor-dative any more than the whole estate of a deceased who had conveyed it to trustees by a trust-deed could be. That the destination in favour of trustees must receive effect is clear from the cases of Walker's Executor v. Walker, January 19, 1878, 5 R. 965, and Connell's Trustees v. Connell's Trustees, July 16, 1886, 13 R. 1175. The trustees, again, have no other duty in regard to it except to fulfil their trust. Possibly the provision for the widow might not at common law prevail against the creditors of the deceased, and might be cut down by a sequestration of his estate. But the executor represents the deceased and not his creditors, and has no title to claim the fund on their account.

The widow claims the sum in the policy on another ground, viz., in respect of the provisions of section 2 of the Married Women's Policies of Assurance (Scotland) Act 1880 (43 and 44 Vict. cap. 26). That section provides, in regard to a policy in favour of the wife of a person insured, that a policy of insurance effected by a married man on his life, and expressed to be for the benefit of his wife, shall be deemed a trust for her benefit, for her separate use, and shall immediately vest in him or in any trustee nominated in the policy in trust for the purpose expressed, and shall not be subject to his control or form part of his estate, or be liable to the diligence of his creditors, or be revocable as a donation or reducible on the ground of excess or insolvency, subject to the proviso in the statute.

It is contended on behalf of the widow that the provision in her favour expressed in the policy in question is protected by the statute.

The executor-dative on the other hand disputes the application of the statute. He avers that the deceased did not intend to effect a policy under the statute, and proposes to prove that averment by parole evidence. He further avers that the policy is in several particulars disconform to the policy contemplated by the statute, because the sum in the policy is made payable to the widow, not to the wife of the insured, because of the destination to the representatives of the deceased in the event of the predecease of his wife, and because of the reserved power to regulate the terms of payment and vesting. He maintains that these provisions have the effect of reserving to the husband a control over the policy, which is inconsistent with the provisions in the statute, vesting the sum insured absolutely in the wife. I doubt whether I ought to express any opinion on this plea, because my judgment is independent of it, and because I am not clear that the executor-dative is the proper contradictor of the widow on the question. But as the point was carefully argued, and as the parties somewhat anxiously desired a judgment on it, I may very shortly indicate the impression I have formed.

I think that the policy must be judged by its terms, according to their sound construction, and that the proposed parole

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