Scottish Court of Session Decisions

By antenuptial contract of marriage dated 4th June 1850 Andrew Blackburn bound and obliged himself to make payment to the child or children of his marriage with Mrs Elizabeth Blackburn of the following sums of money, viz., “if one child Five thousand pounds, if two children Six thousand pounds, and if more than two Eight thousand pounds, to be payable at the first term of Whitsunday or Martinmas after the death of the longest liver of him and the said Elizabeth Mary Buchanan, with interest during the non-payment thereof, which sum, in the event of there being more children than one, shall be divisible in such proportions as the said Andrew Blackburn shall appoint, by a writing under his hand at any time of his life, and, failing such appointment, to be divided equally amongst the survivors of them and the issue of such as may have predeceased leaving issue, such issue succeeding always only to the shares to which their parents would have been entitled had they been in life.” He further bound himself to make payment to trustees of the sum of £5000, to be applied after his death in paying an annuity to his widow, and after her death to form part of the provisions in favour of the children, “failing whom the same shall upon the death of the said Elizabeth Mary Buchanan be paid over to the heirs and assignees of the said Andrew Blackburn.” On 5th March 1885 Mr Blackburn executed a deed of apportionment in which, on the narrative of the marriage-contract, and in consideration that there were then four children of the marriage surviving, viz., John Blackburn, Andrew Buchanan Blackburn, David William Ramsay Blackburn, and Mrs Euphemia Mary Ramsay Blackburn or Fergusson, he apportioned the provisions as follows:—“Therefore I do hereby apportion out of the said sums of Six thousand pounds or Eight thousand pounds as the case may be, to the said David William Ramsay Blackburn, whom failing by his predeceasing the term of payment, his issue, Two hundred pounds: And I apportion the remainder of the said sums of Six thousand pounds or Eight thousand pounds as the case may be to and between and among the said John Blackburn, Andrew Buchanan Blackburn, and Euphemia Blackburn or Fergusson, and the survivors and survivor of them, and the issue of such as may have predeceased the term of payment leaving issue, equally between and among them, such issue succeeding always only to the shares to which their parents would have been entitled had they been in life.”

Mr Blackburn died in 1885 survived by Mrs Blackburn (who is still alive) and the four children mentioned above. David William Ramsay Blackburn died in October 1888 unmarried and intestate, and Andrew Buchanan Blackburn died on 6th August 1895 survived by a widow (Mrs Elizabeth Blackburn) but without issue. The said Andrew Buchanan Blackburn by testamentary writing bequeathed his whole estate to his widow, and appointed her his sole executrix.

Questions having arisen as to their respective

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rights under the obligation in the marriage-contract, a special case was presented by (1) the marriage—contract trustees, (2) The surviving children of Andrew Blackburn, viz., John Blackburn and Mrs Fergusson, (3) The said Mrs Elizabeth Blackburn, widow of Andrew Buchanan Blackburn.

The third party contended that on a sound construction of the marriage-contract the fee of the provision of £8000 vested in the said Andrew Blackburn's children as they came into existence, or otherwise at the date of the dissolution of the marriage, and that the said deed of apportionment with regard thereto was ultra vires of the said Andrew Blackburn, and that accordingly she was entitled to the fee which had vested in her husband at the time of his death.

The second parties contended that the deed of apportionment was intra vires, and that even if it were inept, no fee vested in any of the children till the death of the survivor of the spouses.

The questions for the consideration of the Court were—“1. Was the said deed of apportionment within the power of the said Andrew Blackburn, and does it now regulate the succession to the fee of the provisions made by the said Andrew Blackurn in favour of the children procreated of his marriage? 2. In the event of question No. 1 being answered in the affirmative, is vesting of said provisions postponed until the date of the death of Mrs Elizabeth Mary Buchanan or Blackburn? 3. If question No. 1 is answered in the negative, did said provisions vest, on a sound construction of said contract of marriage, in said children—(1) as they came into existence; (2) or on the dissolution of the marriage; or (3) is vesting thereof postponed until the date of the death of Mrs Elizabeth Mary Buchanan or Blackburn?”

Argued for third parties—(1) There was a presumption in marriage-contracts in favour of vesting either on the birth of the children or at the date of the dissolution of the marriage. The provisions to children were onerous, for the children gave up certain provisions to which they were entitled by law, and it was unlikely that the vesting of any benefit in them should be conditional on their surviving the liferentrix. The only reason for postponing payment was to provide for keeping up the liferent. There were really no expressions in. the deed to indicate the intention that vesting should be postponed, and accordingly the general principle should apply— Rogerson's Trustees v. Rogerson, March 10, 1865, 3 Macph. 684, at 691; Wright's Trustee v. Wright, February 20, 1894, 21 R. 568. There was not a real destination-over here, it not being to a stranger, and only in case of failure of issue. The clause was practically the same as that in Romanes v. Riddell, January 13, 1865, 3 Macph. 348, where there was held to be vesting at the dissolution of the marriage. (2) The power of appointment had not been validly exercised in respect ( a) that it fixed a term of vesting different from that in the marriage-contract, ( b) that it included persons, viz., the issue of children not predeceasing him, but predeceasing the liferentrix, who were not the subjects of the gift, (c) that it was exercised not in favour of individuals ascertained, but included an unascertained class to be determined by survivorship.

Argued for first and second parties—(1) Vesting was postponed till the death of the survivor. There were in this deed thus three essential indications of an intention to postpone vesting, viz., a clearly defined term of payment, a destination-over, and a survivorship clause. When the first and last of these were present there could be no vesting in the children individually at the dissolution of the marriage, but in them only as a class— Vines v. Hillon, July 13, 1860, 22 D. 1436; Boyle v. Earl of Glasgow's Trustees, May 14, 1858, 20 D. 925. The word “divisible” as used in this deed was equivalent to “payable.” (2) But even if it were held that there was vesting a morte, the deed of appointment did not exceed the powers given in the marriage—contract. Mr Blackburn had powers under it to apportion either among children or grandchildren. It was not incompetent to make a conditional appointment; the holder of a power might apportion the whole estate to one son on condition of his attaining a certain age. The appointment here in favour of children who might survive a certain event was equally competent. Even if part of the appointment were ultra vires, that would not affect the validity of the rest— Wright's Trustee v. Wright, supra.

At advising—