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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Proctor's Trustees v. Proctor [1905] ScotLR 42_566 (31 May 1905)
URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0566.html
Cite as: [1905] SLR 42_566, [1905] ScotLR 42_566
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SCOTTISH_SLR_Court_of_Session
Page: 566↓
Court of Session Inner House First Division.
v.
Facts:
By antenuptial contract of marriage A assigned to trustees two policies of insurance and his household furniture, with power to the trustees to demand in lieu of the furniture a sum of £200. He also bound himself to pay his widow a sum of £20 for mournings. The contract provided that in the event, which happened, of the dissolution of the marriage by the predecease of A, the estate was to be conveyed to his widow. The trustees never entered into office, and the policies of insurance lapsed.
By a trust-settlement subsequent in date A conveyed his whole estate to trustees for, inter alia, payment of certain legacies to his children and an annuity of £70 to his widow, declaring that these provisions “in favour of my wife and children are made and shall be accepted by them as in lieu and in full satisfaction of all claims competent to them upon my estate through my death.”
On A's death his widow elected to take the annuity of £70 provided to her by the settlement, but contended that she was entitled in addition thereto to the marriage-contract provisions of £200 and £20. She agreed to abandon all her other claims under the marriage-contract.
Held that the widow's claims for the sums of £200 and £20 under the marriage-contract were “claims competent … on my estate through my death,” and accordingly were excluded by the clause of discharge in A's settlement.
By antenuptial contract of marriage entered into between the late Alexander Forbes Proctor, M.B., 9 Golden Square, Aberdeen, and Mrs Elizabeth Roger or Proctor, dated 2nd September 1864, Dr Proctor conveyed to the trustees ( first) two policies of assurance, and ( second) his whole household furniture and other plenishings then belonging or which should belong to him at the dissolution of the marriage, with power to the trustees to demand from him and his heirs and successors the sum of £200 “in lieu and place of the said furniture and others.” He also bound himself in the event of his predecease to pay to his widow, inter alia, the sum of £20 for mournings.
The marriage-contract provided—in the event which happened, viz., the dissolution of the marriage by the predecease of the husband—as follows ( Second) If the said intended marriage shall be dissolved by the predecease of the said Alexander Forbes Proctor, whether there shall be issue thereof alive or not, the said whole estate and effects shall belong to the said Elizabeth Roger for her own absolute use and behoof, and the trustees shall be bound to denude in her favour accordingly, and to account with her for any interests which may have accrued on any of the said trust property, and generally for their disposal thereof.”
Dr Proctor, who died on 25th June 1903, left a trust-settlement dated 30th July 1902, and registered in the Books of Council and Session 29th June 1903. At the time of his death Dr Proctor was living apart from his wife under a contract of voluntary separation dated 8th December 1896, which provided for the payment to her by him of an annuity of £70. The said annuity was paid down to September 1903.
By the fourth purpose of the trust-settlement it was provided as follows:—“( Fourth) My trustees shall continue to pay my wife during the said next three years, if she survive so long, the annuity of £70 per annum she at present receives from me.… ( Sixth) As soon as may be after the expiry of the said three years after my death my trustees shall denude and make over equally share and share alike to my said four daughters or the survivors or survivor, the legal issue of any predeceasing daughter coming in their mother's place, per stirpes, the residue of my said whole means and estate then remaining in their hands, but that under burden of the continuance, should my wife be then alive, of an annuity to her of £70 per annum which I hereby leave her; Declaring that the foregoing provisions in favour of my wife and children are made and shall be accepted by them as in lieu and in full satisfaction of all claims competent to them upon my estate through my death.” …
Mrs Proctor having claimed payment of the marriage-contract provision in addition to the annuity of £70 provided to her by the trust-settlement, an agreement, dated 22nd December 1903, was entered into between her and Dr Proctor's trustees by which she elected to take the provisions in her favour in the settlement, and agreed to abandon her claims under the marriage-contract, except her claim for the sum of £200 in lieu of furniture and the sum of £20 for mournings. As regards her right to demand payment of these two sums in addition to the provision in her favour in the settlement, a Special Case was presented, of which the said agreement was
Page: 567↓
held to form part. The parties to the special case were—(1) Dr Proctor's testamentary trustees and (2) Mrs Proctor. The case stated—“5. For many” years prior to the death of the said Alexander Forbes Proctor the trust created by the said contract of marriage had practically lain dormant, and was so at the date of said death. There is at present no trustee or judicial factor on the marriage-contract trust-estate. The policies of assurance which had, as before mentioned, been assigned to the trustees had long since lapsed. The furniture and household effects assigned to the said marriage contract trustees were sold by the said Alexander Forbes Proctor a short time before his death, and the proceeds were paid to and appropriated by him. Upon 15th July 1904 the second party presented a petition under section 14 of the Trusts (Scotland) Act 1867 for authority to complete in her own name, as sole beneficiary, a title to the said marriage-contract trust funds, and by interlocutor pronounced by Lord Low, Ordinarry, upon 18th October 1904, proceeding upon said application, the said second party was granted warrant to complete a title in her own name to the moveable or personal property therein specified, viz., the said sum of £200 claimed by the second party in lieu and place of said furniture and others, and the said sum of £20 bequeathed to the second party by the said Alexander Forbes Proctor for mournings. The said Alexander Forbes Proctor died possessed of certain estate, heritable and moveable, which estate is held and is being administered by” the parties of the first part who are his executors and testamentary trustees. Any” claim therefore that the second party may have under the said contract of marriage becomes in fact a claim against the parties of the first part as the executors and testamentary trustees of the said Alexander Forbes Proctor.”
The first parties maintained “that on a sound construction of the said trust-settlement, and particularly of the clause therein declaring that the provisions in favour of the said Alexander Forbes Proctor's said wife and children should be accepted by them as in lieu and full satisfaction of all claims competent to them upon his estate through his death, the second party is put to her election as between the provisions in her favour in the said contract of marriage and her legal rights in her husband's estate on the one hand and the provision in her favour in the said trust-settlement on the other hand.”
The second parties maintained “that on a sound construction of the said antenuptial contract of marriage and of the said trust-settlement she is entitled, as sole beneficiary, to the whole of the provisions claimed by her” as restricted by the aforesaid agreement, “and to payment of these restricted provisions out of the trust-estate left by the said Alexander Forbes Proctor at his death. The second party claims payment of the said sums of £200 in lieu of household furniture and others and £20 sterling for mournings, being the provisions in her favour contained in the said antenuptial contract of marriage as the same have been restricted … (and to which she has made up a title as aforesaid) and that in addition to the said annuity of £70 sterling provided to her under the said trust-settlement, commencing from the 9th September 1903, under deduction of any sums paid to account thereof by the first parties.”
The question of law was—“On a sound construction of the terms of the said trust-settlement of the said deceased Alexander Forbes Proctor, and of the provisions of the foresaid contract of marriage, is the second party entitled to payment from the first parties out of the testamentary trust-estate of the said deceased Alexander Forbes Procter of the provisions conceived in her favour under said antenuptial contract of marriage (restricted as aforesaid, in terms of said minute of agreement between the parties) and that in addition to payment of the annuity conceived in her favour under said trust-settlement?”
Argued for the second party—The question was one of intention. The creditors in the marriage-contract were not the same as those in the settlement. The provision of £200 in the marriage-contract was a de presenti gift which the trustees could demand at any” time— Keith Johnston's Trustees v. Johnston's Trustees, November 3, 1894, 22 R. 28, 32 S.L.R. 24; Johnstone v. Hairland, February 17, 1896, 23 R. (H.L.) 6, 33 S.L.R. 511. The provisions in the marriage-contract were not claims competent to Mrs Proctor “through her husband's death,” but were independent gifts which were not inconsistent with the provisions in the settlement— Elliot v. Bowhill, June 21, 1873, 11 Macph. 735; Cowan v. Dick's Trustees, November 1, 1873, 1 R. 119, 11 S.L.R. 25. There was no presumption against cumulative provisions. The clause of exclusion was meant to distinguish between legal rights and provisions under the settlement and not between the marriage-contract provisions and those of the settlement— Cowan v. Dick's Trustees, ut supra.
The first parties were not called upon.
This estate was to be held by his marriage-contract trustees for certain purposes. The first of these was to give to Dr Proctor the free interest or annual proceeds of the trust-estate, and then, in the event which happened (viz., the dissolution of the marriage by the predecease of Dr Proctor), the marriage-contract estate was to be conveyed to the surviving spouse.
The marriage-contract trustees do not seem to have ever entered into office. The
Page: 568↓
Things being in that position, Dr Procter died leaving a trust-disposition and settlement by which he conveyed his whole estate to testamentary trustees for certain purposes, one of which was to provide an annuity of £70 to his widow.
The trust-disposition and settlement then goes on—“Declaring that the foregoing provisions in favour of my wife and children are made, and shall be accepted by them, as in lieu and in full satisfaction of all claims competent to them upon my estate through my death.”
The widow has elected to take the provision of £70 a-year, but she contends (and this is the subject of this case) that there is nothing to prevent her asking in addition for the £200 in lieu of furniture and the sum of £20 for mournings. She is content to renounce her claims quoad ultra.
The simple question therefore is, whether the declaration which I have read does or does not include these two sums of £200 and £20, and that depends on whether they are or are not described as a matter of construction by the words “claims competent to them upon my estate through my death.”
It seems to me that they are so included. The position of matters under the marriage-contract was that the widow was entitled to ask the trustees to denude in her favour of a portion of the trust estate which included these sums, and that she could only do so on her husband's death. It was therefore a claim competent to her upon his estate on his death.
If that is so, that is an end of the case. The learned counsel for the widow, however, has cited some authorities. Most of these cases had no bearing on this case, as they were cases dealing with double provisions, the whole point in these cases being whether it was to be presumed that the one provision was in substitution of the other. In none of these cases was there anything said in the deed itself, except in Cowan v. Dick's Trustees ( 1 R. 119), but there the clause of discharge, which was held not to cover a provision in favour of a child, was in these terms—“Which provisions conceived in favour of my said wife and children are hereby declared to be in full satisfaction to them respectively of all terce of lands, half or third of moveables, bairns' part of gear, legitim, portion natural, executry, and every other claim or demand which they or any of them, their heirs or successors, could by law ask or demand by or through my decease.”
The judgment of the Court followed upon the distinction to be drawn from the enumeration of “legal claims.” This is clear from Lord Cowan's judgment, for he says (p. 121)—“When Mr Dick executed his trust-deed he must be supposed to have had his contract of marriage before him, and several of the clauses establish this to have been so. And if he intended the residue bequest to extinguish the contract provision, he would naturally have included the claim under it in the clause of discharge. But he confines it to legal claims.”
If the clause of discharge here had declared the provisions to be in substitution of all “legal claims,” that case would have been in point, but it does not do so. The clause of discharge here is not confined to legal claims, for it includes “all claims competent on my death.” Therefore I hold the question in the case should be answered in the negative.
Page: 569↓
Further, this is a settlement by the testator of his whole estate, and it is very unlikely that he would wish to allow old claims under a marriage-contract that had never been operative to interfere with the provisions of his general settlement.
The Court answered the question of law in the negative.
Counsel for the First Parties— Kemp— A. M. Mackay. Agents— Waugh & M'Lachlan, W.S.
Counsel for the Second Party— Constable— W. Mitchell. Agent— James F. Mackay, W.S.