Scottish Court of Session Decisions

By antenuptial contract of marriage dated 30th May 1860, entered into between Adam Boyd Boyd and Elizabeth Curry Hogue, Mr Boyd bound himself to pay to trustees £5000 for the following purposes—“( First) That the said trustees shall receive, hold, and administer the said sum of Five thousand pounds in their own names, and pay or apply the full annual income or proceeds thereof as an alimentary fund to or for behoof of the family establishment to be created by the said spouses, excluding always the jus mariti or right of administration of the said Adam Boyd Boyd in or over both the said principal sum and the annual income or proceeds thereof, which rights or claims he hereby specially renounces, and also excluding the claims of any creditors of the said spouses, or either of them, and declaring that the said principal and interest thereof shall not be assignable by them or either of them to the prejudice of this trust: And further, the said trustees and their foresaids shall have power, and are hereby empowered, either themselves to expend or apply, or else to pay over, the said free income or proceeds thereof to either of the spouses they may from time to time prefer, whose sole and separate receipt shall be their sufficient discharge.… ( Second) That the said trustees and their foresaids shall continue to make such annual payments to or for the said spouses during the subsistence of the marriage, and to or for the survivor so long as he or she remains unmarried, but not longer: And upon the death or remarriage of the said survivor, the said principal

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sum, or the investments on which it stands' shall belong and be made over in equal sums to and among the children equally of the marriage between the said Adam Boyd Boyd and Elizabeth Curry Hogue: Declaring that the shares of any that may be pupils or minors at the time shall continue to be held and administered by the said trustees and their foresaids for their behoof until their majority, with power to the said trustees to make previous advances to them or for their behoof to the extent of one-third of their estimated shares, and in the event of the predecease of any of them before majority their share shall descend and belong to their lawful issue, if any, equally, and failing issue shall then accresce and belong to their surviving brothers and sisters equally, the issue of any such having predeceased in like manner taking their parents' share,… and which other provision above written, conceived in favour of the child or children who may be born of the said intended marriage, it is hereby declared shall be in full satisfaction to them of all bairns' part of gear, legitim, portion natural, executory, and everything else that they could claim or demand by and through the decease of the said Adam Boyd Boyd, excepting what he may think fit to bestow of his own goodwill.”

By the said marriage-contract the following provisions were made regarding Miss Hogue's estate—“For which causes and on the other part the said Elizabeth Curry Hogue, with the consent of the said Robert Hogue her father, hereby dispones, assigns, and makes over to the said trustees and their foresaids her whole means and estate, heritable or moveable, which she may acquire or succeed to by the death of her father, or by or from any other person or persons, to be held by them in trust ( First) For behoof of herself and her said intended husband and the survivor of them in liferent, for their liferent use allenarly, and ( Second) For behoof of the child or children of the marriage in fee, to be equally divided among them if more than one.”

The said £5000 was duly paid to the trustees by Mr Boyd, and Mrs Boyd brought no estate into the trust at the date of the marriage.

Mr Boyd died in 1870, survived by his widow, who was still alive and unmarried at the date of this case, and by two children, Robert Hogue Boyd and Ada Boyd.

Ada Boyd married in 1893 Thomas Arthur Randal Hutchinson, and by antenuptial contract of marriage disponed to trustees her whole means or estate then belonging to her or to which she might succeed or acquire right in any way during the subsistence of the marriage.

Robert Hogue Boyd died unmarried in 1902, leaving a will conveying the residue of his estate to the children of Mr and Mrs Hutchinson.

In 1882 Mrs Boyd succeeded to £230 from her aunt Miss Wilson, and in 1889 to a further sum of £1711 from her uncle Mr Thomas Wilson.

In these circumstances, questions having arisen both as to the estate inherited by Mrs Boyd from her aunt and uncle and as to the estate brought into the marriage-contract by Mr Boyd, a special case was presented for the opinion and judgment of the Court.

The parties to the case were—(1) Mr and Mrs Boyd's marriage-contract trustees, (2) Mrs Boyd, (3) Robert Boyd's executor, (4) Mr and Mrs Hutchinson's marriage-contract trustees.

The questions of law for the judgment of the Court were as follows—“(1) Was the estate inherited by Mrs Elizabeth Curry Hogue or Boyd Boyd from her aunt and uncle as aforesaid carried to the first parties under the clause of assignation of acquirenda in her marriage-contract? or, Does it fall to be paid to the second party free of the marriage-contract? (2) In the event of the first alternative of the immediately preceding question being answered in the affirmative, did one-half of the estate inherited by Mrs Elizabeth Curry Hogue or Boyd Boyd, and carried to the first parties as aforesaid, vest in her son, the deceased Robert Hogue Boyd Boyd, prior to his death? (3) In the event of the immediately preceding question being answered in the affirmative, are the first parties entitled to make payment of the share of the said estate vested in Mr Robert Hogue Boyd Boyd, upon a receipt and discharge by the second party, and by the third party as executor aforesaid and as tutor-in-law of his daughters? or, Are they bound to retain and administer the same in order to protect the second party's liferent? (4) Did one-half of the fee of the estate brought into the marriage-contract settlement by Adam Boyd Boyd vest in his son the deceased Robert Hogue Boyd Boyd on his survival of the dissolution of the marriage between his parents?”

With regard to the estate inherited by Mrs Boyd, it was maintained and argued by the second party that, as it did not come to her until after the dissolution of her marriage by the death of her husband, it did not fall under the clause of assignation of acquirenda in the marriage-contract at all, but fell to be paid to her as her absolute property— Wardlaw v. Wardlaw's Trustees, supra; Russell's Trustee, June 30, 1887, 14 R. 849, 24 S.L.R. 610.

The first parties maintained and argued that the said estate did fall within the clause of assignation, and that they were bound to administer it as part of the marriage-contract funds, and in this contention the third and fourth parties concurred.

With regard to the estate brought into the marriage-contract by Mrs Boyd, the third party maintained and argued that one-half thereof vested in Robert Boyd on the dissolution of the marriage of his parents by the death of his father. There was nothing to suggest postponement of vesting except that the only destination in the deed was a direction to make over on the death or re-marriage of the surviving spouse— Forbes v. Luckie, January 26, 1838, 16 S. 374; Rogerson's Trustees v. Rogersons, March 10,1865, 3 Macph. 684.

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The fourth parties maintained and argued that no right in the said estate could vest in anyone till the death or re-marriage of the survivor of the spouses— M'Alpine v. M'Alpine, March 20, 1883, 10 R. 837, 20 S.L.R. 551; Buchanan's Trustees v. Buchanan, May 26, 1877, 4 R. 754, 14 S.L.R. 503; Richardson's Trustee v. Cope, March 8,1850, 12 D. 855; Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142.