Scottish Court of Session Decisions

James Robertson Buntine, advocate, Sherifif-Substitute of Stirlingshire, was married to Miss Jane Sandeman in 1874. By antenuptial contract of marriage dated 12th October and recorded 22nd December 1874 Miss Sandeman (afterwards Mrs Buntine) conveyed to trustees her whole estate, heritable and moveable, belonging or which should belong to her during the subsistence of the marriage, except legacies of £500 or under, revenue falling to her from estate separately settled on her, and revenue due to her from the trust-estate prior to the last date of the contract, and that in trust for the following purposes (1) To pay the expenses of the trust; (2) for behoof of Mrs Buntine in liferent; (3) in the event of her husband surviving her, for his behoof in liferent for his liferent alimentary use allenarly; (4) to hold the fee of the trust-estate for behoof of the children of the marriage; and (5) failing children, for behoof and at the absolute disposal of Mrs Buntine or her heirs and assignees. By it Mr Buntine renounced his jus mariti and rights of courtesy and administration in, of, and in relation to the whole estate presently and in future belonging to Miss Jane Sandeman.

Mrs Jane Sandeman or Buntine died in 1883 intestate, and no children were born of the marriage.

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The marriage-contract trustees duly paid the income of the estate to Mrs Buntine until her death, and thereafter paid it to Mr Buntine, who married again in 1886.

In 1893 Mr Buntine raised an action against the marriage-contract trustees and against Mrs Buntine's next-of-kin, to have said trustees decerned and ordained to pay to him the sum of £15,000, or otherwise such other sum as should be found to be one-half of (1) the trust funds to which the said Mrs Buntine had a personal right at the time of her death; or otherwise (2) the said free moveable estate, and pleaded—“(1) In respect of the provisions of the Married Women's Property (Scotland) Act 1881, sec. 6, the pursuer is entitled to decree as concluded for. (2) On a sound construction of the said marriage-contract and Act of Parliament, and in the circumstances which have arisen, the pursuer is not barred from insisting in his present claim. (3) The defences stated are irrelevant.”

The defenders pleaded—“(1) The pursuer's statements are irrelevant. (2) The pursuer having by antenuptial marriage-contract renounced his whole legal rights in his wife's estate, is barred from insisting in his present claim. (3) The pursuer having by antenuptial contract accepted, and further, and separation, having enjoyed for ten years the liferent of the whole of his wife's estate, is barred from insisting in his present claim. (5) Further, if he has not already elected, the pursuer is now bound to elect between his conventional provisions under the marriage-contract and his rights at common law. (6) Should the pursuer be held entitled now to take and should he take his legal rights, he is bound to account for the conventional provisions which he has enjoyed.”

The Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21), by sec. 6, provides that “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 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.” And by sec. 8 it provides that “This Act shall not affect any contracts made or to be made between married persons before or during marriage or the law relating to such contracts.” …

Upon 9th November 1893 the Lord Ordinary ( Low) pronounced the following interlocutor:—“Repels the first, second, third, and fifth pleas-in-law for the defenders: Finds and declares in terms of the alternative declaratory conclusion of the summons, and decerns, &c.

“ Opinion.—There are two questions in this case—First, whether the pursuer is barred from claiming one-half of his wife's estate under the 6th section of the Married Women's Property Act of 1881 by reason of the renunciation of his legal rights contained in his antenuptial contract of marriage; and second, whether, assuming the first question to be answered in the negative, the pursuer's claim is barred by the provision to him in the marriage-contract of a liferent of his wife's whole means and estate.

I have no difficulty in answering the first of these questions in the negative. The renunciation by the pursuer in the marriage-contract applied only to his legal rights as they then existed, and cannot, in my opinion, be extended so as to include a legal right which was brought into existence for the first time by a subsequent legislation. Further, the point seems to me to be settled by the case of Simon's Trustees, 18 R. 135.

The second question is attended with more difficulty. It seems to have been raised in argument in the case of Simon's Trustees, but I think that the opinions delivered show that the learned Judges did not consider the determination of the question necessary for the decision of the case. The late Lord President, however, expressed a very clear opinion that the husband would have been entitled to enjoy the liferent, and also to claim jus relicti, while Lord M'Laren took the view that it would not be consistent with our practice to allow legal and conventional provisions to be claimed concurrently.

The 6th section of the Married Women's Property Act provides that the husband shall take by operation of law the same share and interest in his wife's moveable estate which is taken by a widow in her deceased husband's moveable estate, ‘subject always to the same rules of law in relation to … the exclusion, discharge, or satisfaction thereof, as the case may be.’

The question is, whether, applying the rules applicable to jus relictoe, the pursuer's claim must be held to be excluded or satisfied by the provision of a liferent of his wife's whole estate.

The case put by the defenders as being analogous to, and ruling the present case, was that of a husband by antenuptial marriage-contract giving to his wife a liferent of his whole estate. In such a case the defenders argued that although the wife did not renounce her legal rights, she would be barred from claiming both jus relictæ and a liferent of the remainder of the estate.

“There is a good deal of authority for that proposition, and I shall assume it to be sound. I do not, however, think that the principles upon which it rests are applicable to the present case.

In entering into a contract such as that supposed, both husband and wife know that the wife will, in the event of the husband's death, be entitled to one-third or one-half of his moveable estate, as the case may be. When, therefore, the husband offers and the wife accepts a liferent of the whole estate, the natural implication is that the intention and agreement of the parties is that the fee of the whole estate should be at the husband's disposal. In

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such circumstances, for the wife to claim jus relictoe in addition to a liferent would be to make a claim inconsistent with the contract—that contract not only being one to which she was herself a party, but also her only title to the liferent.

The wife's claim to both provisions in the case supposed would be rejected (1) on account of the implied intention of the parties arising out of the inconsistency between the provision made for the wife in the contract, and her legal rights, which the parties are assumed to have known and had in view, and (2) because the implied intention being read into the contract, the wife cannot claim both the liferent and jus relictoe without approbating and reprobating the same deed.

In the present case there is no room for implied intention in regard to the right which the pursuer now claims, because as it did not exist at the date of the contract, it is certain that the parties had no intention in regard to it the one way or the other.

The question then is, Whether the pursuer's claim is inconsistent with the contract, so that he cannot make it without reprobating the contract which he has already approbated?

The answer to that question seems to me to depend upon whether the wife, or anyone else is deprived by the pursuer's claim of anything which was stipulated for in the contract, because if not, I do not see how the pursuer can be regarded as reprobating the contract. In the supposed case which I have been considering, the husband would, in the event of the wife getting both provisions, be deprived of the power which by implication he had stipulated for, of disposing of the jus relictce. I do not think that there is anything analogous to that in this case. The wife as the counterpart of the liferent which she gave to her husband made two stipulations in regard to her estate. In the first place, she stipulated that the pursuer should renounce his jus mariti and right of administration; and in the second place, that failing children, the trustees should hold the estate for behoof, and at the absolute disposal, of her and her heirs and assignees. The pursuer is asking nothing contrary to these stipulations; indeed, they are the foundation of his claim. It is because his jus mariti was excluded, and because the trustees held the estate for his wife's absolute behoof, that the pursuer is in a position to make the present claim.

It seems to me that the only ground upon which it could be held that the pursuer's claim is contrary to the marriage-contract, is that the succession of the wife's heirs is protected. The defenders did not argue that that was the case, and I think that any such argument would be untenable. I think that the mention of heirs and assignees does not add anything to the declaration that the estate is to be held for the wife's behoof; at all events, it does not give the heirs and assignees any jus crediti under the contract.

All that the marriage-contract does in regard to the fee of the estate (in the event, which has happened, of there being no children of the marriage) is to ensure that it shall belong to the wife. If there had been children, the question might have been materially different, but there being no children, the result of the contract was that the fee of the estate remained the absolute property of the wife. A subsequent statute has enacted, that in such a case the husband is to be entitled to a certain share of the wife's estate. I am unable to see anything to prevent the husband taking advantage of that enactment. He cannot beprevented doing so on the ground of the intention of the parties, because there is no expressed intention, and there is no room for implied intention. And he cannot be prevented doing so on the ground that the claim involves a reprobation of the contract, because the contract has been implemented in every term, and the pursuer, so far from claiming against the contract, rests his claim upon its provisions.

I am therefore of opinion that the pursuer is entitled to one-half of the free moveable estate belonging to his late wife.”

The defenders Mrs Jane Sandeman or Buntine's next-of-kin reclaimed, and argued—(1) To give effect to this claim would be to go in the teeth of an antenuptial marriage-contract, the most binding contract known to the law, and which the Married Women's Property Act 1881 specially provides shall not be affected by that Act. By marriage-contract here the wife stipulated that her whole estate should be at her disposal, or at the disposal of her heirs and assignees. She disposed of it in favour of her heirs by leavingno will. This claim proposed to substitute a right of disposal of half the estate for the right of disposal of the whole estate as contracted for. (2) It was impossible to say the husband's claim was under the contract. He was in no sense his wife's heir. The jus relicti like the jus relictæ was the right of a creditor— Inglis v. Inglis, Jan. 28, 1869, 7 Macph. 435. (3) Under the Act a widower was to be in the same position as a widow. He must therefore elect between his legal and his conventional provisions. But the pursuer here must be held to have elected to take his conventional provisions, for he had already enjoyed more under them than he would have enjoyed under his legal ones.

Argued for respondent—(1) The Act applied to marriages entered into before the Act. This could not be disputed— Poe v. Paterson, December 13, 1882, 10 R. 356— aff. July 16, 1883, 10 R. (H. of L.) 73. (2) There was here no question of intention of parties. The question was, had the Act not given the husband the right now claimed. If it had, he was entitled to his marriage-contract rights and to his statutory rights. Neither was there any question of election. (3) The renunciation of his jus mariti was not a bar to his claim. That was settled by the case of Fothering-ham's Trustees, June 27, 1889, 16 R. 873. He could not renounce a right the law

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had not yet conferred upon him— cf. Dunbar's Trustees, December 19, 1877, 5 R. 350, and July 12, 1878, 5 R. (H. of L.) 221. (4) The enjoyment of the liferent was not a bar— Simon's Trustees v. Neilson, November 20, 1890, 18 R. 135, espec. Lord President Inglis. (5) This claim was not affected or excluded by the marriage-contract. It was not in opposition to it but under it. The Act had passed before the wife's death. She had made no will, and therefore her her succession was regulated by the rules applicable to intestacy. According to them since the Act of 1881 the husband took a half of his wife's moveable estate.

At advising—