Scottish Court of Session Decisions

By antenuptial contract of marriage, dated 26th and 27th July 1848, entered into between Robert Barclay, Montrose, and Robertina M'Culloch Watson, afterwards Mrs Barclay, Robert Barclay conveyed to his intended wife in liferent upon her survivance, and to the children of the intended marriage in fee, whom failing to his own heirs and assignees whomsoever, the whole estate belonging or that should belong to him at the dissolution of the marriage, with the exception of a policy of assurance upon his own life for the sum of £499, 19s., and furtherconveyed to the Rev. Jonathan Watson and others, as trustees, the said policy of assurance, to hold the same for his intended wife in liferent and the children of the marriage, whom failing his heirs and assignees whomsoever, in fee; and, on the other part, the said Robertina M'Culloch conveyed to the Rev. Jonathan Watson and others, being the persons nominated by her husband as aforesaid, as trustees, the whole estate then belonging to her or which should belong to her during the subsistence of the marriage, and in particular her interest as beneficiary under the last will of her granduncle William M'Culloch, in trust for the purposes and with and under the powers, conditions, and declarations therein specified. These trust purposes were as follows:—(1) for payment of the free income of Mrs Barclay's estate during the subsistence of the marriage to herself; (2) for payment of the said income to her during her survivance of her husband; (3) for payment to her intended husband, during his survivance, and while he should remain unmarried, of the free income of all estate vested in her or in trustees for her behoof, or to which her right had emerged during the subsistence of the marriage; and (4) for retention of the capital of her said estate after her decease and the expiry of her intended husband's liferent rights, for behoof of the child or children of the marriage, or their issue, and payment thereof to them at the following periods, viz., if the said child or children or the said issue should have previously attained the age of twenty-one years complete, or being daughters should have been married, immediately after the

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expiry of the liferent right of her husband, or the arrival of the said period of majority or marriage, whichever of these events should last arrive; “and in the event that there shall be no child or children of the said intended marriage surviving at the death of the said Robertina M'Culloch Watson, or that such as may survive her and their issue shall die before majority, or being daughters before marriage, that the said trustees or trustee acting for the time shall pay over, assign, and convey to and in favour of the said Heyworth Watson, Alexander, William, Jonathan, and Morrison Watsons, all her brothers, and to Agnes and Amelia Watsons, her sisters, equally among them, share and share alike; declaring that the share of any of her said brothers and sisters who may die before majority or marriage without issue shall devolve to the survivors or survivor of them, and that the distribution of the said trust funds shall in every event take place per stirpes, the whole trust funds then in their possession, and that at the periods and in manner following:—If the said Robertina M'Culloch Watson shall survive the said Robert Barclay and the children and issue aforesaid, at the term of Whitsunday or Martinmas first after her decease; if the said children and issue shall survive the said Robert Barclay and the said Robertina M'Culloch Watson, and shall afterwards fail as aforesaid, at the term of Whitsunday or Martinmas first after the failure of the last survivor of such children or issue; and if the said Robert Barclay shall survive the said Robertina M'Culloch Watson, and the said children and issue shall all before his decease have failed as aforesaid, at the first term of Whitsunday or Martinmas after the expiry of the said liferent, with interest from the foresaid term of payment during the not payment.”

The marriage-contract contained certain other clauses and, inter alia, a declaration in the following terms:—“I, the said Robertina M'Culloch Watson, declare that these presents shall not be revocable by me, even with the consent of the said Robert Barclay, my future husband, on any ground or in any form whatever.”

The marriage was dissolved by the death of the said Robert Barclay on 8th May 1896, and there were no children of the marriage.

During the subsistence of the marriage Mrs Barclay succeeded to certain sums of money, being shares of the estate of relatives, amounting at the date of her death to £8829.

The said Mrs Robertina M'Culloch Watson or Barclay survived the said Robert Barclay, and died upon 4th November 1901 without having entered into a second marriage, and predeceased by all her brothers and sisters named as beneficiaries under the said antenuptial contract of marriage, with the exception of her sister Agnes, now Mrs Agnes Watson or Black. Her brother the said Heyworth Watson died on 16th August 1851 without leaving issue. Her brother the said Alexander Watson died in 1863, survived by a son Heyworth Watson. The said William M'Culloch Watson died on 8th May 1889, survived by his wife and two daughters. The said Jonathan Pearce Watson died on 6th May 1888 unmarried. The said Morrison Watson died on 25th March 1885 intestate, without issue. Amelia Watson, after wards Mrs Amelia Watson or Mackay, died on 23rd November 1892, survived by eight children.

Mrs Barclay at her decease left a trust-disposition and settlement, dated 25th May 1899, in which, upon a narrative of the conveyance in trust granted by her in the antenuptial contract of marriage, of the trust purposes contained therein, and of the special declaration therein contained prohibitive of revocation by her of the said antenuptial contract of marriage, and upon the further narrative that she had resolved to revoke the aforesaid antenuptial contract of marriage in so far as regarded the destination of the funds which came from or through her, she revoked and recalled the foresaid antenuptial contract of marriage, with the whole heads, clauses, tenor, and contents thereof, in so far as regarded the destination therein of the funds which came from or through her, whether vested in herself or her marriage trustees, and falling under the restrictions of the said antenuptial contract of marriage, and conveyed to trustees therein named, not only the whole funds, means, and estate which came from or through her and fell under the restrictions of the foresaid antenuptial contract of marriage between her and her said husband, whether vested in herself or in her marriage trustees or trustee for her behoof, but also the whole means and estate which should belong and be addebted to her at the time of her death, or of which she might have the disposal (excepting only a sum of £750), and that in trust for, inter alia, the following purposes, (2) for payment, free of duty, of certain legacies; (lastly) as regards the residue of the trust-estate, for payment at the first term of Whitsunday or Martinmas six months after her death, to all her nephews and nieces who should survive and should then have attained majority, equally between or among them, share and share alike, the issue of nephews and nieces predeceasing her being entitled equally among them to the shares which their parents would have taken if alive.

A question having been raised as to whether Mrs Barclay's trust-disposition and settlement effectually operated revocation of the destination in favour of her brothers and sisters contained in Mr and Mrs Barclay's marriage-contract, the present special case was presented for the opinion and judgment of the Court.

The parties to the case were—(1) The sole trustee under Mr and Mrs Barclay's marriage-contract, (2) the trustees under Mrs Barclay's trust-disposition and settlement, (3) Heyworth Watson, son of Alexander Watson and a nephew of Mrs Barclay, (4) Mrs Agnes Watson or Black, the surviving sister of Mrs Barclay, who was a legatee under

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her trust-disposition and settlement, (5) the six children of Mrs Agnes Watson or Black, being nephews and nieces of Mrs Barclay, (6) the eight children of Mrs Amelia Watson or Mackay, being nephews and nieces of Mrs Barclay, (7) the two daughters of William M'Culloch Watson, being nieces of Mrs Barclay, and (8) the legatees under Mrs Barclay's trust-disposition and settlement.

The third, fourth, and seventh parties maintained that the destination contained in Mrs Barclay's antenuptial contract of marriage was not evacuated to any extent by her trust-disposition and settlement.

The fifth, sixth, and eighth parties maintained that Mrs Barclay, having survived her husband, and there being no issue of the marriage, was entitled to revoke, and did by her trust disposition and settlement effectually revoke, the destination of her estate contained in her contract of marriage.

The question of law for the determination of the Court was, inter alia—“(1) Was Mrs Barclay entitled to revoke, and did she by her trust-disposition and settlement effectually revoke, the destination of her estate contained in her antenuptial contract of marriage?”

Argued for the fifth, sixth, and eighth parties—The destination in the marriage-contract in favour of Mrs Barclay's brothers and sisters was revocable by Mrs Barclay, and had been effectually revoked by her trust-disposition and settlement. The destination in question was purely testamentary and not contractual. The case fell under the rule that in a marriage-contract clauses of eventual destination to strangers, i.e.—to persons not descended of the marriage, and therefore not within the consideration of the marriage—were mere gratuitous destinations which created no obligation against the granter, and which he might therefore revoke—per Lord Watson in Macdonald v. Hall, July 24, 1893, 20 R. (H.L.) 88, at p. 94, 31 S.L.R. 279. This doctrine, which was stated by Erskine iii. 8, 39, was established by a series of cases,— Laidlaws v. Newlands, February 1, 1884, 11 R. 481, 21 S.L.R. 332; Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027, 15 S.L.R. 690. The case of Mackie v. Gloag's Trustees, March 6, 1884, 11 R. (H.L.) 10, 21 S.L.R. 465, was quite inapplicable here, inasmuch as Mrs Barclay's brothers and sisters were merely substituted upon the failure of children of the marriage, and were not directly instituted, whereas the decision in Mackie v. Gloag's Trustees, supra, went on the ground that the wife's children by a former marriage were directly instituted along with the children of the marriage, the mother being completely divested and a beneficial fee vested in them by a delivered conveyance to trustees for their behoof. The argument put forward on the other side, based on Mackie v. Gloag's Trustees, supra, had been maintained and refuted by Lord Watson in Macdonald v. Hall, supra. If the marriage-contract was in itself revocable, the declaration in it as to its being irrevocable was of no effect, as such a clause could be revoked equally with the other clauses of the deed.

Argued for the third, fourth, and seventh parties—The brothers and sisters of Mrs Barclay were donees under the trust-conveyance by which Mrs Barclay had divested herself. The conveyance was not merely testamentary but a de presenti conveyance in their favour. They were named individually, and the declaration in the deed that it should not be revocable by the granter on any ground or in any form whatever went strongly to show the irrevocable and absolute character of the right conferred on the beneficiaries existing at the time. The case fell accordingly within the decision of Mackie v. Gloag's Trustees, supra. Mrs Barclay's brothers and sisters were in a position similar to that of the children of the first marriage in Mackie, and the reasoning of the dissenting judgment of Lord Rutherfurd Clark in that case ( 11 R. 746, at 758), 20 S.L.R. 493, which was upheld by the House of Lords, ruled the present case.