Scottish Court of Session Decisions

By mutual trust-disposition and settlement dated 14th September 1883 John Robertson, Collector of Inland Revenue, sometime in Greenock, then in Manchester, and latterly in Edinburgh, and Mrs Isabella Farquharson Begg or Robertson, his wife, who had not executed any marriage-contract, in order to settle the succession to their means and estate, disponed and assigned to and in favour of the survivor of them, and to James Collie, advocate in Aberdeen, and the survivor of them, as trustees for the purposes therein mentioned, and to their assignees, the whole heritable and moveable means and estate then belonging or that should belong to them at the date of their respective deaths, and appointed their said trustees to be their executors. The trust purposes were, inter alia, as follows:—“(Third) that on the death of the first deceaser of us the said trustees shall give to the survivor the liferent use and interest of the residue of the predeceaser's means and estate, both heritable and moveable hereby conveyed,” and “(fourth) that on the death of the survivor of us the residue of our whole respective means and estates, both heritable and moveable, shall then be divided among our children equally, share and share alike, and the survivors of them, it being hereby declared that the lawful issue of any of them predeceasing the foresaid period of division shall come in their parent's place, and shall take equally among them the share which would have fallen to their parent if in life.” The mutual trust-disposition and settlement further contained the following clause:—“And we reserve our respective liferents of the means and estate hereby conveyed; and we reserve power also jointly, but not otherwise, to alter, innovate, or revoke these presents in whole or in part, it being hereby declared that should these presents stand unrevoked at the death of the first deceaser of us, then it shall not be competent to the survivor of us to alter or recal them in any way.”

Mrs Robertson died on 6th December 1884, and was survived by her husband and four daughters and two sons. She left moveable estate of the nett value of £10,293, 9s. 1d. She died possessed of no heritable estate. The estate left by Mrs Robertson was derived from her father, John Begg, Lochnagar (who died on 8th February 1882), and formed a separate estate, from which her husband's jus mariti was excluded in terms of the provisions of the Married Women's Property Act 1881, and in particular of section 3, sub-section 2, thereof. James Collie declined to accept office as trustee and executor, and John Robertson was confirmed as sole trustee and executor of his wife, and entered upon the liferent possession of her means and estate in terms of the mutual trust-disposition and settlement.

By deed of assumption and conveyance and trust-disposition and settlement dated 10th October 1898, John Robertson, as sole surviving and accepting trustee and executor under the mutual trust-disposition and settlement, nominated and appointed four newtrustees and executors under the mutual trust-disposition and settlement so far as relating to his deceased wife's estate; and he conveyed to himself and them, and the survivors and survivor of them who should accept office, for the purposes expressed in the mutual trust-disposition and settlement, the whole trust-estate, means, and effects left by his said wife as aforesaid, and then vested in him or under his control as sole surviving and accepting trustee and executor foresaid, together with the whole titles, vouchers, and instructions thereof. And further, on the narrative that he was advised that notwithstanding the terms of the mutual trust-disposition and settlement he might nevertheless still vary the purposes and provisions thereof in so far as they related to his own means and estate, and that he had resolved upon altering the same in manner thereinafter set forth, he thereby revoked the said mutual trust-disposition and settlement to the extent and effect to which it related to his own means and estate. He also nominated and appointed the same persons to be trustees and executors to carry out the purposes of his own will, and assigned and disponed to them and the survivors or survivor of them who should accept office, the whole means and estate, heritable and moveable, then belonging to him, or which should belong to him at the time of his death, or of which he should have the power of disposal, or with which he might be entitled to deal beneficially in any manner of way, in trust always for the ends, uses, and purposes thereinafter set forth. He directed his said trustees and executors, after payment of his debts and of the Government duties and trust expenses, to divide the residue of his means and estate into nine equal parts or shares, and to hold, pay, and apply them as follows:—(First) two-ninth parts or shares to be paid over and conveyed absolutely to each of his daughters, Mrs Kate Isobel Robertson or MacGregor, and Mrs Alice Begg Robertson or Alder; (second) two-ninth parts or shares to be held by his trustees for behoof of his daughter Mrs Lottie Elizabeth Robertson in liferent, and her children in fee; (third) two-ninth parts or shares to be held by his trustees for behoof of his daughter Mrs Jeannie Begg Robertson or Bond in liferent, and her children in fee; and (fourth) the remaining one-ninth equal part or share to be held by his trustees for behoof of his grandson Eric Ian Robertson, a pupil, until he attained the age of twenty-five years, and thereafter to be paid over to him.

Mr Robertson died on 1st August 1899. He was survived by the said four daughters, and by the said grandson Eric Ian Robertson, who was the only child of the late John Begg Robertson, M.B., C.M., second son of the said Mr and Mrs Robertson. Alexander

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Robertson, the elder son of the said Mr and Mrs Robertson, died unmarried and intestate on 23rd August 1885. Mr Robertson left means and estate (inclusive of his wife's estate liferented by him as aforesaid) of the value of about £34,000.

In these circumstances, a question having arisen as to Mr Robertson's power to alter the settlement of his estate contained in the mutual trust-disposition and settlement, the present Special Case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the trustees and executors under the deed executed by Mr Robertson on 10th October 1898; (2) Mrs Kate Isobel Robertson or Macgregor; (3) Mrs Alice Begg Robertson or Alder's marriage-contract trustees, Mrs Alder, and her husband; (4) Mrs Jane Begg Robertson or Bond's marriage-contract trustees; (5) Mrs Lottie Elizabeth Robertson's marriage—contract trustees, Mrs Robertson, and her husband; and (6) Mrs Jessie Mildred Hanson or Robertson as tutor of Eric lan Robertson.

The questions of law were—“Was Mr Robertson entitled after the death of his wife to alter, innovate, or revoke the settlement of his estate contained in the mutual trust-disposition and settlement executed by him and his wife on 14th September 1883, and were the revocation, alteration, and innovation thereof contained in the deed of assumption and conveyance and trust-disposition and settlement executed by him on 10th October 1898 effectual? or, Does the distribution of his estate still fall to be regulated by the provisions of said mutual trust-disposition and settlement?”

Argued for the first, second, and third parties—The mutual trust-disposition and settlement was revocable after the wife's death by the husband in so far as it regulated the disposal of his means and estate after his death. The deed was not a contract throughout, it was a contract only so far as it applied to husband and wife. As regards the children, the deed was testamentary—it was simply two wills incorporated in one deed. Mr Robertson was therefore entitled after the death of his wife to alter the testamentary part of the deed so far as it dealt with his own property— Mitchell v. Mitchell's Trustees, June 5, 1877, 4 R. 800; Melville v. Melville's Trustees, July 15, 1879, 6 R. 1286.

Argued for the fourth, fifth, and sixth parties—The provisions of the mutual trust-disposition and settlement as to the division of Mr Robertson's estate on his death were contractual and irrevocable except by joint consent of the spouses. The husband's revocation and alteration were ineffectual and null and void, and the succession to his estate fell to be regulated by the provisions of the mutual settlement. The provisions of that deed were reasonable; the wife had contributed above £10,000, and the husband above £20,000. It was a remunerative contract, as the husband had taken the enjoyment of the liferent of the wife's estates for fourteen years. He could not thereafter revoke the benefits to the children which had been practically purchased by the wife. The whole trend of authority was in favour of their contention— Anderson v. Garraway, January 27, 1837, 15 S. 435; Hogg v. Campbell, February 24, 1863, 1 Macph. 647; Kidd v. Kidd, December 10, 1863, 2 Macph. 227; Davidson v. Mossman, May 27, 1870, 8 Macph. 807; Craik's Trustees v. Mackie, June 24, 1870, 8 Macph. 898; Welsh's Trustees v. Welsh, October 24, 1871, 10 Macph. 16; Muir v. Lamb, March 10, 1880, 7 R. 688. The cases of Mitchell's Trustees and Melville were quite distinct from the present. In these cases the husband gave everything and the wife nothing. The agreement was therefore one-sided and unreasonable, and was not remunerative as far as the husband was concerned. In Mitchell's Trustees also there were no children of the marriage.