Scottish Court of Session Decisions

By antenuptial marriage-contract dated 10th June 1856, John Duncanson Bell, inter alia, bound and obliged himself, “in consideration of the provision in his favour hereinafter contained,” to make payment to his wife, if she should survive him, of an annuity of £100, and further bound himself to make payment to the children of the marriage alive at his death of the sum of £1000. It was declared that the provisions in favour of the children should be in full satisfaction of all bairns' part of gear or legitim, “for which causes and on the other part “Jane Fraser Hogg, the wife, assigned, disponed, and made over” to herself and the said John Duncanson Bell in conjunct liferent, for their liferent use allenarly, and to herself, excluding the jus mariti of her said promised husband, and her heirs and assignees whomsoever in fee, all and sundry” her property and acquirenda other than her provisions before specified.

Mrs Bell died on 1st March 1896, survived by her husband and two sons, and leaving a general disposition and settlement, dated 27th February 1896, by which she nominated one of her sons, John Munro Bell, to be her executor, and bequeathed to him the whole of her means and estate.

On 2nd March 1897 the other son, Harold Fraser Bell, raised an action against John Munro Bell, concluding for an account of Mrs Bell's moveable estate, for payment of £200 as the amount of the pursuer's legitim out of the said moveable estate, and for delivery to the pursuer of certain pictures and articles of furniture in Mrs Bell's house at the time of her death, but alleged to belong to the pursuer.

The pursuer pleaded, inter alia—“(1) The late Mrs Bell having died possessed of moveable estate, separate from her husband's, of the value condescended on, the pursuer, as one of her two children, is entitled to one-sixth thereof as his legal share or legitim.”

The defender averred that the pursuer had received large advances from his mother during her lifetime, and pleaded, inter alia—“(2) In any event, the pursuer is not entitled to a share of legitim during the lifetime of his father, his claim being barred by the terms of the antenuptial contract of marriage condescended on, and in the circumstances the pursuer is not entitled to decree under the first conclusion of the summons.”

The Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21), sec. 7, enacts—“After the passing of this Act, the children of any woman who may die domiciled in Scotland shall have the same right of legitim in regard to her moveable estate which they have according to the law and practice of Scotland in regard to the moveable estate of their deceased father.”

Sec. 8.—“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.”

On 20th January 1897 the Lord Ordinary ( Pearson) before answer appointed the defender to lodge an account of Mrs Bell's moveable estate, “bringing out the amount which would be due to the pursuer as legitim, on the assumption that he is entitled to legitim.”

On 17th November 1897 the Lord Ordinary found that the pursuer's claim for legitim on his mother's death was not barred or discharged by the antenuptial marriage-contract, therefore repelled the defender's second plea-in-law, and before further answer allowed a proof, and on the defender's motion granted leave to reclaim.

Opinion.—“As to legitim, the defender maintains, in the first place, that it is excluded by the antenuptial marriage-contract of the parents, and that at all events the claim must be postponed until the father's death. By that deed, dated in 1856, Mr Bell makes certain provisions for his wife and children, and these provisions are accepted by the wife and children, as in full of the legal rights which they could claim upon his death. This plainly does not extend to claims arising on the wife's death. But in the wife's part of the contract she assigns to herself and her husband, in conjunct liferent, for their liferent use allenarly, and to herself, excluding the jus mariti of her husband, and her heirs and assignees whomsoever, in fee, her whole estate then belonging to her, or which she should acquire during the marriage, or which should belong to her at her death.

The case of Fisher's Trustees, 1844, 7 D. 129, was referred to as ruling this case. But in that case the fee of the estate was conferred on the children. Here the wife settles nothing on the children, and even assuming that the right subsequently conferred by statute was capable of being discharged by anticipation, it could only be so if some provision were given in lieu of it. So far as her estate is concerned, the implied discharge of the children's legal rights accruing on her death would be gratuitous, and without any consideration.”

The defender reclaimed, and argued—The pursuer had no claim to legitim. The children's right to legitim was discharged by the marriage-contract, which was, by the express provision of that statute, unaffected by the Married Women's Property Act 1881. [The Lord President referred to Buntine v. Buntine's Trustees, March 16, 1894, 21 R. 714.] Fisher's Trustees v. Fisher, November 19, 1844, 7 D. 129, was an authority for the proposition that the legitim had been discharged. At all events, the pursuer was not entitled to claim legitim until the expiry of his father's liferent. Provisions made by one spouse for another were of the nature of debts—Fraser, Husb. & Wife, ii. 986; Fisher, utsup. The provision in consideration of which the husband expressly granted his provision in favour of his wife was this liferent and nothing more. If the executor handed over to the pursuer his share of legitim, the creditor's security for the fulfilment of the obligation would be pro tanto diminished.

Argued for the pursuer—The Lord Ordinary

Page: 244↓

was right as regards legitim. There could be no discharge of legitim unless a, sum, no matter how small, was given in place of it—M'Laren on Wills, i. 136; Earl of Kintore v. Countess-Dowager of Kintore, June 28, 1884, 11 R. 1013, per Lord Fraser, Ordinary. Here there was no such payment or provision at all. Fisher's case was therefore easily distinguishable. Further, the pursuer had a right to payment as at the date of Mrs Bell's death. The liferent she provided to her husband was the liferent only of what she could leave him at her death; and at her death, by operation of statute, a portion of her moveable estate went to her children as legitim.— Poe v. Paterson, December 13, 1882, 10 R. 356, established the proposition that the Act of 1881 applied to marriages contracted before, as well as to those contracted after, the passing of the Act.