Scottish Court of Session Decisions

James Copland died on 9th November 1896 leaving a holograph will in the following terms:—Edinburgh, 1 Buccleuch Street, August 19, 1875. I hereby leave and bequeath, in the event of my death, to my well-beloved sister, Jane Copland, now Mrs Robert Reid, Wellington Street, Kirkwall, Orkneys, all my property, heritable and moveable, real and personal, either mine at present or in expectancy, for her sole and separate use in liferent, and at her own option as to destination in the event of her death, excluding the jus mariti of her husband (in terms of their marriage-contract). I esteem Mr Reid very highly, and I know his advice will be given in the management, but not to the extent of any control. In the event of mother or any of my brothers surviving me, I am certain she will treat them as kindly as I could wish.”

The testator, who was unmarried, was survived by his sister Mrs Reid and a brother William Matches Copland.

Mrs Reid had been married to Robert Reid, Kirkwall, on 8th December 1871, and in view of the marriage the spouses entered into an antenuptial contract of marriage dated 6th December 1871. By the marriage-contract Mr Reid conveyed to the trustees therein named certain heritable property in Kirkwall belonging to him and a policy of life assurance for £300 in trust for the following purposes, viz.—(First) For payment of the expenses of the trust; ( second) that the trustees should apply the annual produce of the estate in payment of the premiums on the said life policy and also on a fire policy to be effected over the said property and “the surplus of the said rents and interests to or for behoof of the said Robert Reid and Jane Copland as an alimentary allowance free from their debts and deeds of the said Robert Reid and Jane Copland or the diligence of their creditors;” ( third), for payment to Mrs Reid during her life, should she survive her husband, and should there be issue of the marriage of the free yearly income: And in the event of her predeceasing him and there being issue, for payment thereof to Mr Reid, and that for their respective liferent uses allenarly; ( fourth), on the decease of both spouses for payment to their child or children, if any, equally among them if more than one. and the lawful issue of predecessors as therein mentioned of the free yearly income of the estate, and on the youngest attaining the age of twenty-one, for payment and conveyance to them of the capital under reservation of a power of apportionment to the survivor of the spouses; ( fifth), in the event of the second marriage of the surviving spouse, there being children of the present marriage, that the trustees should have power to make advances to such children; ( sixth) “in the event of the said Jane Copland surviving her said promised husband, and there being no surviving issue of the marriage, the said trustees shall convey and make over to her the whole of the said trust means and estate, heritable and moveable, as her own absolute property: But in the event of the said Robert Reid surviving her, and there being no surviving issue of the marriage, the said trustees shall re-convey and make over the same to him for reconveyance thereof to him as his own absolute property as heretofore:” for which causes, and on the other part, Mrs Reid conveyed to the said trustees the whole means and estate of whatever nature or denomination or wherever situated then pertaining to her, or which she might succeed to or acquire during the marriage, or which might belong to her at her decease, always excepting the foresaid provisions in her favour, but in trust for the purposes first, second, and third above specified; ( fourth), in the event of Mrs Reid surviving her husband, then on her death for payment of the free yearly income to the children of the present or any future marriage as therein mentioned, and on the youngest child attaining majority for conveyance to them of the capital subject to a power of apportionment by Mrs Reid; ( fifth), in the event of Mr Reid predeceasing his wife without leaving issue of the marriage, for reconveyance of the estate to Mrs Reid; and ( sixth), in the event of Mrs Reid being the predeceaser without leaving such issue, for payment to her husband of the free yearly income during his life, and on his death for conveyance of the estate to her own nearest heirs and assignees; and all which provisions in favour of Mrs Reid were thereby expressly declared to be exclusive of the jus mariti, power of administration, and every other right of her husband during the subsistence of the marriage, and should be accepted by her as in full satisfaction of all terce, jus reliefœ, or other rights competent to her in and through his death, and all which provisions thereinbefore conceived in favour of Mrs Reid were declared to be purely alimentary, and not to be affectable by the debts or deeds or diligence of creditors of her husband and herself, or either of them; and which provisions in favour of children were declared to be in full of all legitim, bairns' part of gear, portion-natural, and any other claim that could be made by them on the decease of their father.

In 1899 Mr Reid was sixty-six years of age and Mrs Reid sixty years of age, and no issue had been born of the marriage. The only assets under the control of the trust were ( a) certain heritable property in Kirkwall worth about £250, and ( b) the sum of £400 due and payableunder the life policy, being the two items conveyed by Mr Reid in the marriage-contract.

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In these circumstances questions arose (1) as to the effect of the holograph will of James Copland, and (2) as to the necessity of keeping up the trust constituted by Mr and Mrs Reid's antenuptial contract of marriage. For the settlement of the question a special case was presented by (1) Mr and Mrs Reid, (2) Mr and Mrs Reid's marriage-contract trustees, and (3) William Matches Copland.

The questions at law were—“(1) Is the effect of James Copland's will of 1875 to confer on Mrs Reid ( a) a right of fee in his estate; or ( b) a liferent with power of appointment by deed either inter vivos or mortis causa deed only? or ( c) A liferent with power of appointment by mortis causa deed only? (2) Are the first parties now entitled by mutual consent, and the consent of the marriage-contract trustees to terminate the trust created by their antenuptial marriage-contract, and to call upon the trustees to denude of the trust-estate?”

Argued for the third party—The right conferred on Mrs Reid by Mr Copland's will was not a fee but a liferent with a power of appointment which she was entitled to exercise by mortis causa deed only. That was clearly the intention of the testator, which was the ruling consideration in the construction of a settlement. It was also the natural meaning of the clause. The words “in the event of her death” showed that Mrs Reid never could acquire the fee herself. She could have sold it, but only as an expectancy, which could never be realised except after her death. The case therefore fell far short of those in which a party had all the rights of a proprietor without the name— Alves v. Alves, March 8, 1861, 23 D. 712, opinion of Lord Justice-Clerk Inglis, 717; Hyslop v. Maxwell's Trustees, February 1834, 12 S. 413; in re Waddell, February 3, 1849, Scots Exch. Rep.; Sugden on Powers, 104.

Argued for second parties—They themselves were desirous that they should be discharged, but they felt bound to contend that the trust constituted by the marriage-contract of Mr and Mrs Reid must be kept up for fulfilment of the purposes of the contract. There was here under the second purpose an alimentary provision for the spouses during the subsistence of the marriage, and the property had been conveyed to trustees in order that that purposes, inter alia, should be carried out. In these circumstances the spouses were not entitled stante matrimonio to terminate the trust— Menzies v. Murray, March 5, 1875, 2 R. 507; Ker's Trustees v. Ker, December 13, 1895, 23 R. 317; Eliott's Trustees v. Eliott, July 13, 1894, 21 R. 975.

Argued for first parties—(1) Mr Copland's will conferred on Mrs Reid a right to the fee of the testator's estate. There was nothing to prevent Mrs Reid making an out-and-out conveyance with entry at the time of her death so as to comply with the form provided by the deed. The cases cited by the third party differed from the present, because in the present case there was (1) no disposition in trust, and (2) no destination-over. The estate was in Mrs Reid's hands, and there was no one with an interest to prevent her from disposing of it. The right therefore amounted to one of fee. In any event, if it should be held that Mrs Reid's right was limited to a liferent with a power of appointment, she was entitled to exercise that power by deed inter vivos or mortis causa. (2) Mr and Mrs Reid were entitled by mutual consent to terminate the trust under the marriage-contract. The marriage-contract contained provisions in favour of children, but the spouses had reached such an age that the idea of their having children might be disregarded. There was no interest to be provided for by keeping up the trust, and the husband and wife were entitled to renounce their provisions— Paterson v. Hardie, March 7, 1899, 36 S.L.R. 507. The case of Menzies did not rule the circumstances of the present case; in that case the wife had herself conveyed the estate to the trustees. In the present case the whole trust funds belonged to the husband.

At advising—