Scottish Court of Session Decisions

This was a multiplepoinding raised by the trustee under the antenuptial marriage-contract of Mr and Mrs Cuming dated 1845.

By the said marriage-contract Mr Cuming bound himself to provide to his widow an annuity of £40; and to pay to the child or children of the marriage the sum of £300 if there were not more than three children, and the sum of £500 if there were more, at the first term of Whitsunday or Martinmas after his death. He further bound himself to insure his life for £500, and to assign the policy to trustees “in security and for payment, pro tanto, to the said Mary Skirving, in the first place, of the foregoing provisions in her favour, and in the second place, for security and payment of the foresaid provisions in favour of the child or children of the marriage, declaring that the sums when received by the said trustees from the Insurance Company are to be managed by them with the like powers of management and under the like declarations as are herein contained with respect to the sums hereinafter conveyed by the said Mary Skirving to them for other purposes, all which are declared to be applicable in the same way as if the said declarations were here set down at length, which sum of £300, and in the event foresaid the further sum of £200, and the sums to be received in virtue of the foresaid policy, in so far as the same may not be applied for payment of the foresaid provisions to the said Mary Skirving, are to be divided among the said children, if more than one, in such proportions as the said Mary Skirving and George Ronaldson Cuming, or the survivor of them, shall appoint by a writing under her or his hand; and failing of such appointment, to be divided equally among 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.”

Mrs Cuming, of the other part, conveyed her whole property and acquirenda to the trustees for the following purposes—“For payment of the interest or other yearly profits or proceeds of the sums and other estate hereinbefore conveyed to them in trust, to the said Mary Skirving and George Cuming during their joint lives, and on the death of either to the survivor of them, and after the death of the longest liver of the said Mary Skirving and George Ronaldson Cuming, the said trustees shall be bound to denude of the said trust and pay over or convey the said trust estate, with any interest or other profits thereof remaining in their hands unapplied, to the child or children of this intended marriage in such shares or proportions, if more than one child, as may be appointed by the said Mary Skirving and George Ronaldson Cuming or the survivor of them, by any writing under their hands, and failing such writing then the said trustees shall be bound to pay or convey the same to the said children equally and to the issue of such child or children as may have predeceased, such issue having only the share to which their parents would have been entitled had they been in life, and in case of no children of the marriage, or if children, in case of their predeceasing their parents, then and in either of these events the said trustees shall be bound to pay over or convey the said trust estate to the said Mary Skirving, her heirs and assignees whomsoever.”

The circumstances in which the action was raised are thus narrated in Lord Adam's opinion—“The marriage was dissolved by the death of Mr Cuming in January 1890. He was survived by two daughters, Mrs White and Miss Cuming, and by a grandson George Olden, who is the son of a predeceasing daughter. The fund in medio consists of three several sums—(1) a sum of £500 which Mr Cuming bound himself to pay to the children of the marriage, in the terms set forth in the contract, at the first term of Whitsunday or Martinmas after his death; (2) the proceeds of a policy of insurance effected on his life in terms of the contract, and which are said to amount to £630 or thereby, and (3) the whole estate, heritable and moveable, which belonged to Mrs Cuming at the date of the marriage or which she has acquired or may acquire during its subsistence. On the 18th of January 1895 Mrs Cuming executed a deed of appointment, alleged to be in virtue of powers to that effect conferred by the marriage-contract, by which she appointed to her daughters, Mrs White and Miss Cuming, the whole provisions in the contract in favour of the children of the marriage, and directed the trustee to pay the same over to them equally.

In these circumstances the claimants Mrs Cuming and her daughters claim the whole fund in medio, or alternatively the whole fund under deduction of one-third of the sum of £500 claimed by the claimant George Olden. George Olden claims this one-third of the £500, and the only other claimant, the trustee, claims to retain the whole fund until the death of Mrs Cuming, in order to administer it in terms of the contract.”

The deed of appointment executed by Mrs Cuming in 1895, after referring to the provisions of the marriage-contract, proceeded—“Therefore, and in exercise of the said powers conferred on me as survivor foresaid, by the said antenuptial contract of marriage, I do hereby appoint to the said Susannah Cuming and Mary Skirving Cuming or White, equally between them and their respective heirs and assignees, and I direct the trustees or trustee of the said contract of marriage to pay or convey to the said Susannah Cuming and Mary Skirving Cuming or White, equally between them

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and their foresaids, the whole sums, subjects, and others, heritable and moveable, real and personal, by the said contract of marriage settled on, or declared to be held for behoof of, the child or children of the said marriage.”

On 2nd June 1896 the Lord Ordinary ( Pearson) pronounced an interlocutor ranking and preferring George Olden to one-third share of £500, and quoad ultra ranking and preferring the trustee in terms of his claim.

Opinion.—.… “The next question is whether the policy money was provided by way of security only, or whether it forms a substantive additional provision to the children so far as it may not be required in security of the widow's provision. I think it clear that the latter is the sound view. The fund to be divided among the children is described as the ‘sum of £300, and in the event foresaid the further sum of £200, and the sums to be received in virtue of the foresaid policy, in so far as the same may not be applied for payment of the foresaid provisions’ to the widow. I understand, from the 6th article of the pursuer's condescendence, that all parties are willing that both funds should be dealt with in this action.

The trustee and the grandson George Olden next maintain that notwithstanding the deed of appointment the trustee is not entitled to denude, and that the trust must be kept up, both as regards the husband's policy money and the estate settled by the wife, until the death of the surviving spouse. They maintain this on the alternative ground that these trust-funds will not vest until that event, or that if they have vested, the vesting is subject to defeasance in the case of any child who may predecease the widow leaving issue.

As regards the policy money, there is this difficulty in affirming a postponed term of vesting, that the clause appears to contemplate but one period of division as regards both the £500 and the policy money, and that parties are agreed that the former vested at the father's death, and was exigible at the first term thereafter. On the other hand, the policy-moneys were to secure the widow's annuity in the event of her survivance, and the division is to be in such proportions as the spouses or the survivor of them should appoint.

In the event, which has happened, of the wife's survivance, these words are not consistent with a distribution of this fund at the husband's death.

The division of the fund amongst the children is to be ‘among the survivor of them and the issue of such as may have predeceased leaving issue.’ As regards the policy-moneys, I can only read these words as referable, in the event which has happened, to a division as at the death of the surviving wife, the full vesting being suspended till then.

In my opinion, the settlement of the wife's estate, which follows, presents also a case of suspended vesting. After the death of the surviving spouse, the trustees are to denude and to pay and convey the estate to the children, and the issue of such as may have predeceased. These words are, I think, all referable to the period prescribed for denuding and payment, and their effect does not appear to me to be taken off by the words that follow, which are applicable to two events which have not happened.”

The claimants Mrs Cuming and her daughters reclaimed, and argued—(1) The proceeds of the policy of insurance did not constitute a substantive and cumulative fund for the benefit of the children in addition to the £500 which the husband bound himself to pay. They were merely in security of the liferent, and of that provision, and were expressly stated to be so. Any balance, therefore, remaining over after the liferent had been provided for was disposed of by the deed of appointment. (2) With regard to the share contributed by the wife to the marriage-contract funds, its disposal was regulated by the deed of appointment. The general rule was that marriage-contract provisions vested at the dissolution of the marriage, and that the period to which the condition of survivorship referred in such cases was the dissolution of the marriage— Romanes v. Riddell, January 13, 1865, 3 Macph. 348; Rogerson's Trustees v. Rogerson, March 10, 1865, 3 Macph. 684. If that were so, the liferentrix was quite entitled to renounce her liferent, to exercise her power of appointment, and to call upon the trustees to denude in favour of those whom she appointed. In Blackburn's Trustees v. Blackburn, March 20, 1896, 23 R. 698, a definite period was fixed at which the marriage-contract provision was to be payable. There was no such fixed period here.

[Counsel for Mrs Cuming and her daughters consented at the bar to the claim for George Olden, to one-third of the first sum of £500, being sustained.]

Argued for the trustee and for the claimant George Olden—(1) The proceeds of the policy of insurance were a substantive provision to the children of the marriage, and any balance thereof, after providing for the widow's annuity, should be held by the trustees for distribution among the surviving children upon the widow's death, when vesting would take place. (2) Vesting did not take place as regards the sum settled by the widow until her death. The case was precisely analogous to Blackburn's Trustees, ut sup., and the condition of survivorship had also been referred to the death of the liferenter in Vines v. Hillou, July 13, 1860, 22 D. 1436, and Laing v. Barclay, July 20, 1865, 3 Macph. 1143. In Romanes there was no survivorship clause. But if the period of vesting were postponed till the widow's death, she was not entitled by renouncing her liferent to accelerate it— Muirhead v. Muirhead, May 12, 1890, 17 R. (H.L.) 45. Fyfe's Trustees v. Fyfe, February 8, 1890, 17 R. 450, also referred to. The fund should therefore continue to be held and administered by the trustee.

At advising—