Scottish Court of Session Decisions

The Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. c. 21) enacts (Sec. 6)—“After the passing of this Act the husband of any woman who may die domiciled in Scotland shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest and the exclusion, discharge, or satisfaction thereof, as the case may be.”

Section 8—“This Act shall not affect any contracts made or to be made between married persons before or during marriage or the law relating to such contracts, or the law relating to donations between married persons, or to a wife's non-liability to diligence against her person, or any of the rights of married women under the recited Act.”

By antenuptial deed of trust dated 17th March 1890 Miss Elizabeth Hay Milne, in contemplation of her marriage with Alexander Lyon and in order to form a secured provision for herself and the children (if any) of the marriage, disponed to trustees the whole means and estate then belonging to her, or which she should acquire during the subsistence of the marriage, for the following purposes, namely—“That her trustees should hold the trust estate thereby generally and specially conveyed in trust for her alimentary liferent use allenarly, exclusive of her said intended husband's jus mariti and right of administration, and the rights and diligence of his creditors; and declaring that the said liferent should be paid to her on her own receipt, which should be a sufficient discharge to her trustees, and for the children of said intended marriage in fee; and failing such children or issue thereof her trustees should pay or convey the same to her assignees or disponees, whom failing to her lawful heirs.”

Miss Milne was married to Mr Lyon on 18th March 1890. Thereafter the trustees under the antenuptial deed of trust were vested in the estate conveyed to them, the necessary transfers being signed by Mr and Mrs Lyon.

Page: 775↓

No children were born of the marriage, which was dissolved by the death of Mrs Lyon on 10th September 1902.

By trust-disposition and settlement, dated 2nd May 1896, Mrs Lyon, after setting forth the provisions of the said antenuptial deed of trust, and on the narrative that she was desirous of making provision for the disposal after her death of the whole of her means and estate, including the means and estate conveyed in the antenuptial deed of trust, disponed to trustees her whole means and estate then belonging to her or which should belong to her at her death, or of which she might then or at any time have the power of disposal, for the following purposes, viz.—To pay the free annual proceeds to Mr Lyon for his own liferent use allenarly till his death or second marriage, and on the occurrence of either of these events to realise the estate and pay and make over the residue to the children of her sister Mrs Amelia M'Leod Milne or Miller, and of her brother William Milne, who should be alive at that date, equally share and share alike.

The whole estate left by Mrs Lyon was moveable and amounted to £1978.

Thereafter Mr Lyon intimated that he was not to accept the provisions made for him in the trust-disposition and settlement, but claimed to receive one-half of his deceased wife's estate as jus relicti. The residuary legatees under the trust-disposition and settlement contended that he was not entitled to jus relicti.

For the settlement of this point a special case was presented to the Court.

The parties to the special case were (1) Mrs Lyon's testamentary trustees, (2) the residuary legatees, and (3) Mr Lyon.

The question of law was—“Whether the third party is entitled to one-half of the whole trust estate as jus relicti?”

The question was argued on the assumption that Mr Lyon before the marriage knew of the antenuptial deed of trust.

Argued for the second parties—In the antenuptial deed of trust Mrs Lyon reserved power to herself, in the event of there being no children, to dispose of her estate. The husband in the knowledge of this, and the wife on the understanding that she could do so, entered into a contract, viz., the marriage. Mr Lyon had thereby excluded his right to demand jus relicti— Murray's Trustees v. Murray, May 31, 1901, 3 F. 820, 38 S.L.R. 598.

Counsel for the third party was not called upon.