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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> De La Chaumette's Trustees v. De La Chaumette [1902] ScotLR 39_524 (20 March 1902)
URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0524.html
Cite as: [1902] ScotLR 39_524, [1902] SLR 39_524
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SCOTTISH_SLR_Court_of_Session
Page: 524↓
Court of Session Inner House Second Division.
v.
Facts:
A wife by antenuptial marriage-contract conveyed certain funds to
Page: 525↓
trustees, inter alia, for payment to herself of the income, which was declared to be exclusive of her husband's jus mariti and right of administration, and unassignable by her, and in the event of the husband surviving, for payment of the income to him during his life. The trustees were directed to hold the capital in trust for the children of the marriage, in such shares and proportions and under such conditions and burdens as their mother should appoint, and failing such appointment, equally among them. In the event of the dissolution of the marriage without issue, the trustees were directed to pay the capital of the trust estate to the heirs, executors, and assignees of the wife subject to the husband's liferent. No children were born of the marriage. In a special case presented to the Court when both spouses were nearly seventy years of age, held ( diss. Lord Moncreiff) that, as in the circumstances of the case the wife might be presumed to be past the age of childbearing, the trustees were entitled at the request of the spouses to apply the trust funds in the purchase in their own names, as trustees under the marriage-contract, of annuities on the joint lives of the spouses and the survivor, to be held and applied by the trustees as unassignable income for the alimentary use of the spouses.
Opinion per Lord Young that in the circumstances the spouses were entitled to have the trust brought to an end and to receive payment of the capital of the trust estate.
Opinion per Lord Trayner contra.
By antenuptial contract of marriage entered into between Thomas Amédée de la Chaumette and Miss Margaret Gunn, dated 8th December 1876, the said Mrs Margaret Gunn or de la Chaumette conveyed to the trustees thereby appointed certain investments then belonging to her, together with acquirenda during the subsistence of the marriage, in trust for the purposes therein set forth.
The trust purposes were, inter alia, as follows:—“( Second) For payment during her life to the said Margaret Gunn of the whole free income, interest, and profits which shall be derived from the estate conveyed by her as aforesaid, and that exclusive of the jus mariti, right of administration, and every other right of the said Thomas Amédée de la Chaumette, which income, interest, and profits shall not be assignable by her but shall be payable to her on her own receipt alone; and it is hereby declared that the rights and interests of the said Margaret Gunn under this deed shall noway be subject or affectable by the debts or deeds, legal or voluntary, of her said intended husband, nor subject to the diligence of his creditors; and the said Thomas Amédée de la Chaumette hereby renounces and discharges his jus mariti, right of administration, and all rights competent to him in, to, or over any part of the estate and effects of the said Margaret Gunn hereby settled in trust as aforesaid.… ( Third) In the event of the said Thomas Amédée de la Chaumette being the survivor of the spouses, for payment to him during all the days of his life of the said whole free income of the estate hereby conveyed by the said Margaret Gunn, under the burden of educating and alimenting suitably to their station in life the child or children of the marriage, which provision the said Thomas Amédée de la Chaumette hereby accepts in full of his legal claims: ( Fourth) After the death of the longest liver of the spouses, leaving a child or children of the marriage, the trustees shall … hold the capital of the trust estate in trust for the child of the present intended marriage if there be only one who shall attain majority, or being a daughter shall be married, or if there shall be more than one such child who shall attain the said age, or being daughters shall be married, then in trust for such children, in such shares and proportions and under such conditions and burdens as shall be appointed (with or without power of revocation and new appointment) by any writing to be executed by the said Margaret Gunn; And in case the power of appointment hereby reserved shall not have been exercised, and also so far as such appointment, if incomplete, shall not extend, the said capital of the trust estate shall be divisible equally among the children of the marriage and their lawful issue per stirpes and not per capita …. ( Sixth) In the event of the marriage being dissolved by the predecease of the said Margaret Gunn without any child or children of the marriage, or should such child or children die without leaving lawful issue before the estate hereby conveyed by the said Margaret Gunn shall have become payable, then the trustees shall pay, convey, and make over the same to the heirs, executors, or assignees of the said Margaret Gunn, subject always to the liferent of the said Thomas Amédée de la Chaumette as above provided:… With power also to the trustees to invest the estate committed to their charge in the purchase of lands or houses, or on real or heritable or personal security in Great Britain, or in any of the public stocks or debts of Great Britain or its colonies or of any foreign country, or in the bonds or mortgages, shares, or stocks of any public or joint-stock companies at home or abroad, or of any private undertaking, of the propriety of which investments they shall be sole judges, and from time to time to vary and alter the same.”
After the marriage of Mr and Mrs de la Chaumette, the trustees nominated in the marriage-contract accepted office, and entered into possession of the trust funds. The capital of the trust funds amounted to £4700, and the income thereof, amounting to £150, was regularly paid over to Mrs de la Chaumette in terms of the marriage-contract. No children were born of the marriage.
In 1901 Mr and Mrs de la Chaumette, being
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both nearly seventy years of age, and being anxious to obtain as large a return as possible from the trust funds, requested the trustees either to pay over to them the whole of the trust funds in exchange for a discharge by them, or to realise the trust funds and invest the proceeds in the purchase of annuities payable to the spouses and the survivor, such annuities to be declared unassignable. The trustees having declined to do so without judicial authority, a special case was presented for the opinion and judgment of the Court. The parties to the special case were (1) the marriage-contract trustees, and (2) Mr and Mrs de la Chaumette.
The first parties contended that they were not entitled to denude themselves of the trust in favour of the spouses for whose protection it was specially constituted, and that their duty was to conserve the trust funds and administer the same in conformity with the provisions of the marriage-contract, and that the purchase of an annuity or of annuities was outwith the scope of the investment clause of the marriage-contract, and beyond their powers.
The second parties in the contentions as set forth in the special case contended that as there could not now be any children of the the marriage, and that the spouses were the only parties who had any interest in the trust funds, and were therefore entitled (1) To revoke the trust, and to have the trust estate paid or made over to them, or as they might direct; or (2) To have the capital of the trust estate applied in the purchase of annuities on the joint lives of the spouses and the survivor, or of separate annuities on the lives of each, such annuities to be declared unassignable by the annuitants, and the bond or bonds of annuity to be taken in favour of the spouses and the survivor of them, as trustees or trustee for the alimentary use of the respective annuitants; or (3) In the event of its being held that the trust could not be terminated during the subsistence of the marriage, that they were entitled to have the capital of the trust funds realised and applied by the trustees in the purchase of annuities on the joint lives of the spouses and the survivor, or of separate annuities on the lives of each, the bond or bonds of annuity being taken in favour of the trustees so as to preserve the unassignable nature of the income at present payable to the wife under the marriage-contract.
The questions of law were—“(1) Are the parties of the first part entitled now to denude themselves of the trust and pay over the capital of the trust funds to the parties of the second part in exchange for a discharge by them in their favour? or (2) In the circumstances above set forth, are the parties of the first part entitled, at the request of the second parties, to realise the whole of the present trust investments and apply the trust funds in the purchase of annuities from Government or from insurance offices established in the United Kingdom, on the joint lives of the parties of the second part and the survivor, or of separate annuities on the lives of each, such annuities to be declared unassignable by the annuitants, and the bond or bonds of annuity to be taken in the names of the second parties and the survivor of them, as trustees and trustee for the alimentary use of the respective annuitants? or (3) In the event of the Court answering both of the foregoing questions in the negative, are the parties of the first part entitled at the request of the second parties, to apply the trust funds in the purchase in their own names, as trustees under the marriage-contract, of such annuities on the joint lives of the spouses and the survivor, or of separate annuities on the lives of each, such annuities to be held and applied by the trustees as unassignable income for the alimentary use of the spouses.”
In an amendment to the special case the parties agreed in stating that there was “now no likelihood of there being any children of the marriage.”
Argued for the second parties—It could not be maintained in face of previous decisions that the spouses were entitled to have the trust brought to an end. But the third alternative, viz., that the trustees should be authorised to realise the trust estate and purchase an annuity to be held by them would not be contrary to authority, and would not diminish the protection afforded to the wife by the marriage-contract. No doubt the Court had refused to fix any period at which a woman must be presumed to be past child-bearing— Anderson v. Ainslie, January 24, 1890, 17 R. 337, 27 S.L.R. 276; Beattie's Trustees v. Meffan, March 11, 1898, 25 R. 765, 35 S.L.R. 580; Gollan's Trustees v. Booth, July 5, 1901, 38 S.L.R. 762. But there was the strongest presumption, hominis et facti, that a woman of seventy could not have issue. And the Court had given effect to that presumption in two cases where the woman was younger than in the present case— Louson's Trustees v. Dicksons, June 19, 1886, 13 R. 1003, 23 S.L.R. 722; Urquhart's Trustees v. Urquhart, November 23, 1886, 14 R. 112, 24 S.L.R. 98. So, too, in England— Croxton v. May (1878), 9 Ch. D. 388; In re Widdow's Trusts (1871), L.R., 11 Eq. 408.
Argued for the first parties—The trustees conceded the reasonableness of the proposal to purchase an annuity, but the Court could not authorise this to be done without affirming as a legal proposition that a woman of seventy was past child-bearing. And that was precisely what the Court had refused to do in the cases of Anderson and Beattie, supra. The object of the antenuptial contract was to protect the wife against herself, and she could not, stante matrimonio, renounce that protection— Menzies v. Murray, March 5, 1875, 2 R. 507, per Lord Deas, at p. 513, 12 S.L.R. 373. The scheme here proposed afforded no more protection to the wife than in Ker's Trustees v. Ker, December 13, 1895, 23 R. 317, 33 S.L.R. 212, where the wife was held not entitled to alienate the provisions in her marriage-contract.
At advising—
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There are three questions put in the special case, but in the view I take of the case there is no occasion to answer any but the third. Had it been necessary to answer either of these other questions I should have had great difficulty in answering either of them in a sense favourable to the view of the second parties. To do so would be directly in the teeth of decisions which to me seem to be of authoritative weight, and which were referred to in the debate. But the proposal contained in the third question is different. It is that the funds shall still be kept under trust, so as to be protected, while the benefit to the second parties will be increased. As this is agreed upon between the parties to the case, if the Court will sanction it, the only question is, whether this can be done. I confess I have had great difficulty in holding that it can. But after much consideration I have come to be of opinion that the Court may in this case act upon the presumption that the class of beneficiaries contemplated in the provisions of the contract as fiars cannot arise. I think that although it has never been declared that an absolute legal presumption arises at any age that no issue is possible, nevertheless in considering the particular case the Court may, where no other interest can be involved except that of prospective issue, act on a presumption, hominis et facti, based upon what is known as possible or impossible according to the experience of mankind. Now, except in an old case referred to in works on medical jurisprudence no such thing has been heard of as issue between spouses of the age of the second parties in this case. I have therefore come to be of opinion that the Court can, without infringing upon any principle of law, answer the third question in the affirmative.
The questions in the case regard the future disposal or investment of the property held by the first parties as trustees under the antenuptial marriage-contract of the second parties. The property at the date of the contract was the wife's (the husband had none), and was conveyed by her to the trustees with directions to pay the income thereof to her during her life, and on her death to her husband should he survive her, and to pay the capital to the issue of the marriage, or failing such issue then to her (the wife's) “heirs, executors, and assignees.”
The property consists of shares and stocks (I assume good trust-investments) of the present value of £4700, and yielding an income of about £150 a-year. The second parties are childless, and having been so during twenty-five years of married life they think it impossible that they can now begin to have a family, not by reason of any rule or principle of the municipal or common law of Scotland, but of the law of nature regarding the propagation of the human species as manifested by its operation in the past history of mankind. In this view they suggest that the present investments which were properly made in order to preserve the capital for the issue of the marriage, and continued so long as the existence of such issue was possible, ought not to be longer continued, and that the property ought now to be dealt with and applied by the trustees, and lawfully may be, in such manner as will be most profitable and reasonable in their (the second parties') interest, they alone having any beneficial or legal interest in it.
The primary question is whether the second parties and no others have a beneficial interest in the property held by the first parties. It is certain that no others in existence have such interest, so that the question really is whether account ought to be taken of the possibility of a child being hereafter born of the marriage of the second parties. Should it be held that the direction to pay to the issue of the marriage is now to be disregarded, the case would stand thus—that the first parties (the trustees) hold the fee or capital
Page: 528↓
I am of opinion, in law, on the facts of the case, that there is no other interest in existence except that of the second parties, and that the property may be disposed of as if vested in their interest. We determined the law to be to that effect in two cases that occurred in the year 1886, in the case of Louson's Trustees, June 19, 13 Rettie 1003, and in the case of Urquhart's Trustees, November 23, 14 Rettie 112, where on account of the age of the spouses, which was considerably less than it is here, the Court found no possibility of taking judicial account of issue of the marriage, and that the spouses were entitled to have the money put into their own hands to do with as they pleased. That was decided in both these cases. In pronouncing that decision reference was made to the case of Menzies, decided in 1875, where it was held that the wife ought to be protected by having the money held for her annuity so long as the marriage subsisted. The Court did so hold. It is true that in the case of Menzies there was a marriage-contract, and it was maintained, although I never knew on what ground, that there was a distinction between a provision being in a marriage-contract, as in the case of Menzies and also here, and in the testamentary disposition of a relation, which in one of the cases before us was made by that relation becoming a party to the marriage-contract. But with regard to the contracting parties a marriage-contract is no stronger contract than any other deed, and if this old lady, or any other lady who has money, gives a bond to her husband before her marriage, it is impossible to say he could not discharge it. It is well established as a principle of the law of this country that a creditor in any onerous contract or obligation, if sui juris, may discharge it, and to say that her husband could not discharge an onerous contract in his favour by his wife in respect of her money or an obligation by her would be a most untenable proposition and contrary to wellestablished law. I am therefore of opinion, and clearly of opinion, that setting aside the possibility, as being of such a nature as this Court cannot take judicial account of, of the old couple, who have been married for more than a quarter of a century and are now septuagenarians, coming to have a family—laying aside the possibility of an intelligent court of justice taking account of that as a possibility, I have no doubt whatever that the spouses here are entitled to discharge the contract between them in so far as in favour of the husband, he being sui juris, and to receive the money into their own hands and to dispose of it as they please.
The third question presents for consideration a view not presented, so far as I know, in any previous case. The proposal that the trustees should purchase an annuity in their own names, if adopted, might be sufficient to overcome the difficulty presented in each of the cases I have referred to, for so long as the annuity was in the names of the trustees the wife would be protected “against marital influence on the one hand and self-sacrifice on the other” ( Menzies' case), and would be unable to sell or assign the annuity ( Ker's case).
It is obviously very desirable in the interests of the second parties that what is proposed in the third question should be authorised if we can competently do so. The income derivable from the trust funds invested in such securities as trustees may by law invest them is only (we were informed) about £150 a-year, whereas under the annuity which it is proposed to purchase more than double that sum would be obtained. The difficulty we have to deal with arises from the fact that the trustees hold the funds not merely for behoof of the second parties, but also in trust for the children of the marriage. In dealing with this question the material facts are these—The second parties were married in 1876, when they were each apparently over 40 years of age, being now, according to the statement in the case, seventy years of age. There has been no issue of this marriage, and the parties are agreed that “there is now no likelihood of there being any children of the marriage.” But the first parties contend that even in these circumstances they are not entitled to apply the trust funds in the manner proposed, because according to the latest decisions on the subject there is no presumption in law that a woman is past child-bearing at any particular age, and that their duty obliges them to hold the trust funds for behoof of possible issue of this marriage. The recent cases of Anderson and Beattie's Trustees undoubtedly lay it down that there is no presumption of law that a woman is past child-bearing at any particular age. But there are decisions which proceed upon a different view, which will be found referred to in Lord Kyllachy's opinion in Anderson's case, and Lord Adam's opinion in Beattie's case. Accepting, however, for the moment the view adopted in these two recent cases, all that is settled is that there is no presumption of law that at any particular age a woman is past child-bearing. But neither is there any presumption of law that a woman may or will have children after a certain age. There is, however, a very strong presumption hominis et facti that a woman who
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But in my opinion the possibility of issue is not a question of law for the Court. It is a question of fact—a physiological question if you please—on which parties to this case are not agreed, or at least will not say that they are agreed, I am therefore of opinion that it is not the province of the Court to answer such a question, or queries depending upon it. I fear that this decision will hamper us in subsequent cases in which the age of the lady may not be so advanced.
Apart from this I doubt the power of the first parties to sink the capital in purchasing an annuity for Mr Chaumette. According to Menzies v. Murray, 2 R. 507, and other authorities, the consent of Mrs Chaumette stante matrimonio is quite insufficient in law to validate such a use of the trust funds.
The Court pronounced this interlocutor:—
“Answer the questions of law therein stated by declaring that the parties of the first part are entitled at the request of the second parties to apply the trust funds in the purchase in their own names as trustees of such annuities on the joint lives of the spouses and the survivor, such annuities to be held and applied by the trustees as unassignable income for the alimentary use of the spouses: Find and declare accordingly, and decern.”
Counsel for the First Parties— Guthrie, K.C.— Macphail. Agents— H. & H. Tod. W.S.
Counsel for the Second Parties— Dundas, K. C.— Craigie. Agents— Mackenzie & Black, W.S.