Scottish Court of Session Decisions

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On 3rd February 1894 Miss Jane Dunlop Cochran executed a trust-disposition and assignation, by which, in contemplation of her approaching marriage, she assigned to trustees her whole estate, heritable and moveable. She directed that “these presents are granted and are to be accepted by my trustees in trust always for the following ends, uses, and purposes, viz.— First, for my own liferent use and enjoyment allenarly during all the days and years of my life, exclusive of the jus mariti and right of administration of any husband I may have; Second, for behoof of my sisters Margaret Robertson Cochran or Muir, wife of the said Robert Muir, now farmer, Craig-naught, Dunlop, and Jessie Cochran or Anderson, wife of the said Matthew Anderson, equally between them and their respective heirs in fee; and Third, notwithstanding the provision of liferent and fee hereinbefore contained, it shall be within the power of my said trustees, or the survivors of them, at any time in their or his discretion solely, and to the exclusion of every other manner of judging, to advance and pay to me while in life either the whole or such part of the capital as they may deem it expedient and think fit, and that without any consent or concurrence of any kind whatever, declaring that all such payments as may be made to me shall be exclusive of the jus mariti and right of administration of any husband I may have.” She further declared “that these presents shall be held as an alimentary provision for behoof of myself, and shall not be affectable or attachable by the debts or deeds of me, nor by the diligence of my creditors.”

The trust deed was delivered to the trustees.

On 6th February Miss Dunlop married Mr John Shedden. On 11th December 1894 an action was raised by Mrs Shedden, with the consent and concurrence of her husband, against the trustees under the above-mentioned trust-disposition and assignation and her two sisters, the beneficiaries under it, craving the Court (1) for reduction of the deed, and (2) alternatively for declarator that it was revocable, and had been effectually revoked by her. The pursuer averred that she had signed the deed in the belief that it was merely a testamentary writing; and pleaded—“(1) The said trust-disposition and assignation being revocable in its nature, and having been validly revoked by the pursuer, decree of declarator should be pronounced, in terms of the alternative conclusion of the summons. (2) Decree of reduction as libelled ought to be pronounced, in respect that the pursuer was, at the date when she signed the said trust-disposition and assignation, under essential error as to its true import and effect.”

The defenders averred that the pursuer had been aware of the nature of the deed when she signed it, and that, accordingly, there had been no essential error on her part. They maintained that the trust-deed having been executed by the pursuer in contemplation of marriage, and for her protection during marriage, it was not revocable by her.

The Lord Ordinary ( Kyllachy) on 8th June repelled the first plea-in-law for the pursuers, on the revocability of the trust-deed, and allowed the parties a proof of their averments as to essential error.

Note.—“In this case I have come to the conclusion that the disposition and assignation challenged is upon its legal construction a deed which operated as an irrevocable divestiture of the pursuer. I need not explain the grounds of that opinion. They come simply to this, that the deed is a conveyance to trustees for certain purposes, which appear to me to leave the truster merely such rights as are provided to her under the trust-deed, and I do not think it material—at all events I do not think it conclusive—that under the deed the trustees in their discretion have certain powers which may enable them in effect to restore the estate, or part of the estate, to the granter. I do not proceed on the ground that the deed, while essentially revocable as a mere trust for administration, is irrevocable during the subsistence of the marriage. I do not, in short, proceed on the argument which was pressed on me, founded on the application of the cases of Pringle v. Anderson, 6 Macph. 982; Torry Anderson v. Buchanan and Others, 15 S. 1075; and Menzies v. Murray, 2 R. 507. I reserve my opinion upon the application of those cases to trusts of that description. I do not require to consider that position, being of opinion that this was, as I have said, a divesting and irrevocable deed. That being so, I do not know that there is any further question to be decided. Both parties are agreed that there must be inquiry with regard to the averments of the pursuer to the effect that she executed the deed under error, and I am glad that the questions as to whether it would be safe to liberate the granter of such a deed from its provisions, and with respect to what is represented as delivery, have been considered more suitable for proof than jury trial.”

Proof was led by the parties, and on 20th July the Lord Ordinary assoilzied the defenders from the conclusions of the action.

The pursuer reclaimed, and argued—The deed was not irrevocable. The trustees might without any breach of trust reconvey the whole estate to the truster, and accordingly all the right that the beneficiaries could be said to have under the trust-deed was a mere spes successionis, which could be defeated at any moment by an act within the sole discretion of the trustees. Accordingly there was no jus quæsitum in them as to prevent the truster from revoking—— Fernie v. Colquhoun's Trustees, December 20, 1854, 17 D. 232. That being so, the beneficiaries might be said to be out of the way, and the present case was assimilated to Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027; and Murison v. Dick, February 10, 1854, 16 D. 529, where revocation of a deed made voluntarily before marriage was allowed on the ground that no jus qucesitum tertio had been created. The present case was distinguishable from

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Downie's Curator Bonis v. Macfarlane's Trustees, July 20, 1895, 32 S.L.R. 715, where an assignation in trust was held to be irrevocable, for there only a specific sum was assigned, while here it was the universitas, and, moreover, in that case there was no option given to the trustees to reconvey the whole subjects to the truster at their discretion. The cases of Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237; and Forrest v. Robertson's Trustees, October 27, 1876, 4 R. 22, showed that such a deed as this was not effectual against creditors, and accordingly did not operate a complete divestiture of the truster's estate, and was revocable. There were dicta to the same effect in Williamson v. Boothby, June 11, 1890, 17 R. 927. (2) The evidence showed that the deed had been executed by the truster in essential error as to its meaning and effect, and it therefore should be reduced.

Argued for the respondents (1)—As soon as the deed was delivered it was irrevocable, and the evidence showed it had been delivered. The case was ruled b y Robertson v. Robertson's Trustees, June 7, 1892, 19 R. 849; Downie's Curator Bonis v. Macfarlane's Trustees, supra, and Turnbull v. Tawse, April 15, 1825, 2 W. & S. 80. The deed had been executed in contemplation of marriage, and accordingly there were rights to be protected, and the Court would not deprive the truster—at anyrate stante matrimonio—of the protection she had created for herself. The question whether the deed was good against creditors was quite different from the question whether the truster was at will able to revoke this protection which she had given to herself against the influence of her husband. In the cases of Williamson v. Boothby and Mackenzie v. Mackenzie's Trustees quoted by the reclaimer, the deeds had not been executed in contemplation of marriage. The fact that the truster had assigned her universitas, and not merely a specific sum, did not affect the argument— Smitton v. Tod, Dec. 12, 1839, 2 D. 225. (2) The evidence showed the truster was aware of the contents and effect of the deed when she executed it.

At advising—