Scottish Court of Session Decisions

Dr James Barras was married to Miss Rachel Anderson Hyde or Barras on 9th April 1867. The following children were born of the marriage, viz.—(1) William George Barras, M.D., born 30th March 1868; (2) Margaret Mary Barras, born 18th January 1873; (3) Florence Helena Barras, born 5th September 1875; (4) Alice Smith Barras, born 21st February 1877; and (5) Ada Beatrice Barras, born 7th August 1882, who died 8th February 1898.

By a deed of provision and assignation dated 8th April 1881, Dr James Barras, on the narrative that he had not by antenuptial contract of marriage or otherwise made any specific provision for his wife Mrs Rachel Anderson Hyde or Barras. or for the children born or to be born of their marriage, and that he had from time to time taken out policies of insurance on his own life with a view to make suitable provision for them, and on the further narrative that to give effect to his said intention it was necessary that he should execute the said deed of provision and assignation in manner therein underwritten, assigned to and in favour of his wife, the Rev. J. T. Graham, and Thomas Hart, writer, Glasgow, and the survivors or survivor of them, the certificates or policies of assurance granted by the Scottish Widows Fund and Life Assurance Society on his own life, viz.—( First) a policy for £500, dated 20th December 1865; ( Second) a policy for £500, dated 27th August 1873; and ( Third) a policy for £1000, dated 23rd December 1880, together with the whole sums and profits already due and to become due thereon respectively, “in trust for behoof of my said spouse for her own separate use and maintenance, and the maintenance, upbringing, and advancement in life of the

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children procreated or to be procreated of the marriage between us, all as she may see proper or may direct or appoint by any writing under her hand, it being hereby declared that in the trust hereby created my said spouse shall be a trustee sine qua non, and my said other trustees shall be guided by her as to how and in what manner and in what sums the funds at the disposal of my said trustees shall be apportioned for the foresaid purposes allenarly: And in the event of the death of my said spouse without leaving any written directions as aforesaid, then my said trustees shall hold whatever sum may remain in their hands for behoof of our children procreated or to be procreated of our said marriage as aforesaid, equally between them, share and share alike: Declaring that the provisions hereby conceived in favour of my said wife and children shall be for their own separate alimentary use allenarly, and not affectable by or attachable for their own debts or deeds or the diligence of their creditors, and also exclusive of the jus mariti and right of administration of any husband my wife or daughters may marry: And with the view to render these presents more effectual I hereby bind and oblige myself, my heirs, executors, and successors, regularly to continue to pay the premiums on said certificates or policies of assurance as the same fall due, and to exhibit discharges therefor to my said trustees, surrogating and substituting my said trustees in my full right and place of the premises, with power to them to ask, crave, and uplift the respective sums of money, principal, interest, and profits or bonuses hereby assigned, and upon payment to grant discharges thereof either in whole or in part, and generally to do everything concerning the premises that I could have done myself before granting hereof, which assignation I bind myself, my heirs, executors, and successors whomsoever, jointly and severally to warrant to the said trustees from all facts and deeds done or to be done by me in prejudice hereof; and I appoint the said Thomas Hart to be law-agent in the said trust, and have delivered up to him the said three certificates or policies for behoof of the said trustees, and to be used by them in trust as aforesaid as their own proper writs and evidents in all time coming.”

The deed of provision and assignation was intimated by Thomas Hart to the Scottish Widows' Fund and Life Assurance Society on 18th April 1881. The premiums were thereafter regularly paid by Dr James Barras.

On 9th December 1899 James Barras, with consent and concurrence of his wife and surviving children, and of the trustees named in the deed of provision and assignation, brought an action against the Scottish Widows’ Fund and Life Assurance Society concluding for declarator that the deed of provision and assignation was revocable by the pursuer either at his own hand, or with the consent of his wife and children and of the said trustees, and that he was entitled to revoke it; and further, that it should be declared that the policies of assurance were the sole and absolute property of the pursuer, and were free from and unaffected by the provisions of the above deed.

The pursuer averred—“The purposes which Dr Barras had in view in granting the said deed of provision and assignation have been otherwise accomplished, Mrs Barras having been otherwise suitably provided for, and the children of the marriage having been properly educated and brought up to full age. The pursuer's natural obligations to his wife and children have thus been otherwise discharged. The pursuer therefore maintains that the deed was a donation stante matrimonio, and that he is entitled to revoke it at his own hand. In any view Dr Barras maintains that he is entitled to revoke the said deed of provision and assignation, with consent of Mrs Barras and the children of the marriage, and also the persons named as trustees in the said deed, all of whom are willing to concur with Dr Barras in executing a deed of revocation. The defenders, however, have refused to recognise the right of the pursuer to revoke said deed of provision and assignation, either at his own hand or with the consents above mentioned, and the present action has been rendered necessary to vindicate said right of revocation.”

The defenders explained “that recently Dr Barras asked the defenders if they would recognise as effectual a revocation by him of the said deed of provision and assignation in trust, either at his own hand or with the consent of Mrs Barras and the children of the marriage and the trustees. The defenders were advised, and informed Dr Barras that as the deed had been duly delivered, intimated, and acted on by the trustees therein named, and made alimentary provisions of a reasonable amount for the granter's wife and children, and as the marriage is not yet dissolved and the ultimate beneficiaries cannot yet be ascertained, they could not recognise as effectual a revocation by him, either at his own hand or with the consents mentioned, and they are not now prepared to do so without the sanction of the Court. Such sanction cannot be obtained otherwise than by the defenders lodging defences, as the trustees, who are the proper contradictors, having the substantial interest, are acting in concert with Dr Barras, and appear as pursuers.”

They pleaded—(1) “The pursuer's statements are irrelevant and insufficient to support the conclusions of the summons.”

On 20th March 1900 the Lord Ordinary ( Kyllachy) sustained the first plea-in-law for the defenders and dismissed the action.

Note.— “I have, I confess with some reluctance, come to the conclusion that I cannot give the pursuer decree in terms of the conclusions of the summons.

It has to be noted that the question here raised is not, as in the case of Schumann, 13 R. 678, whether the trustees who hold the assigned policies can legally surrender them, or can legally borrow money upon them for the purposes of the trust. I

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do not, as at present advised, at all doubt that they might do so, and that the defenders, the Insurance Company, would be in safety to accept a surrender, or even to make advances as against the policies in terms of their rules. Such transactions would—as explained in the case of Schumann—not necessarily be inconsistent with the trust, and indeed might be quite necessary for its protection. Nor, apart from notice of any intended breach of trust, would the Insurance Company be bound to assume that anything of that kind was intended. I am disposed to assent to the argument that all this may be made to follow from the case of Schumann.

But the object of the present action is to put an end to the trust altogether, the declarator sought being that the husband and grantor is entitled to revoke it, or at least to do so with the assent of the trustees, and his wife and children, who are t be existing beneficiaries. This, it is obvious, is quite a different matter, and one which cannot be considered apart from the cases of Low v. Lore's Trustees, November 20, 1877, 5 R. 185, and Peddie v. Peddie's Trustees, February 6, 1891, 18 R. 491. In both of those cases opinions were expressed and received effect adverse to the competency of revocation in such circumstances as exist here—opinions going in effect to this, that the doctrine of the cases of Torry Anderson and Menzies and Murray applies equally to postnuptial and antenuptial provisions. If, therefore, the trust-deed here is to be held as delivered—and I understand the pursuer does not now dispute that that is so—I am unable to hold that the pursuer's wife was entitled slante matrimonio to discharge the provisions in her favour. The pursuer does not propose to amend his summons, nor does he make any motion for proof. I have therefore no alternative but to sustain the first plea-in-law for the defenders and dismiss the action.”

The pursuer appealed, and argued—The deed of provision did not constitute a liferent in favour of the wife and a fee in favour of the children; it was a deed the immediate effect of which was to place the fee wholly in the power of the wife. In short, under the deed the wife was entitled to the fee of the estate— Allan's Trustees v. Allan, December 12, 1872, 11 Macph. 216; Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1038. In these circumstances the pursuers, with the consents mentioned in the summons, were entitled to revoke the deed. The cases of Low and Peddie. founded on by the Lord Ordinary were cases in which a liferent provision in favour of the wife was constituted or might emerge.

Argued for defenders—The cases of Low and Peddie conclusively settled that where a husband makes a reasonable provision for his wife during her life by conveyance to trustees, he is not thereafter entitled to revoke it although he has her consent or any other consents. There was no distinction between a provision by liferent and a provision by fee; if it were reasonable it was not revocable, even if it consisted of a fee— Galloway v. Craigs, July 17, 1861, 4 Macq. 267.