Scottish Court of Session Decisions

This was an action at the instance of Mrs Catherine Anna Stirling Sawrey-Cookson, wife of James Freville Rawlinson Sawrey-Cookson, and residing with him at the Old Palace, Chippenham, Wiltshire, and the said Mr Sa wrey-Cookson as her curator and administrator-in-law and for his own interest, against Thomas Archibald Warnock of Portaferry, County Down, Ireland, and Mark Bannatyne, solicitor, 145 West George Street, Glasgow, the surviving trustees acting under a trust conveyance and settlement granted prior to her marriage by Mrs Sawrey-Cookson (then Miss Stirling), with the special advice and consent of her father, the deceased Richard Stirling, dated 5th June, and recorded in the Books of Council and Session 12th July 1890.

The summons concluded for reduction of (1) the said trust conveyance and settlement, and (2) a receipt and ratification thereof dated 17th March, and recorded in the Books of Council and Session 19th April 1894, granted by Mrs Sawrey-Cookson, with consent of her husband, in favour of the trustees; or otherwise for declarator that the trust conveyance and settlement was revocable by Mrs Cookson with her husband's consent.

Mrs Cookson, prior to her marriage, resided with her father in Melville Street, Edinburgh, and had a Scottish domicile. Mr Cookson was at the date of the marriage, and still was, a domiciled Englishman. There was no issue of the marriage in existence, and the capital funds administered by the trustees amounted to upwards of £15,000.

Mrs Cookson, who was then nineteen years of age, by the trust conveyance and settlement in question, in contemplation of her approaching marriage, assigned to the trustees therein mentioned her whole means and estate (excepting as therein specified), reserving power to herself at any time to ask and receive from the trustees, with their consent and approval, on her own receipt, a payment or payments out of the capital of her estate of a sum or sums not exceeding in all £2000, as her own absolute property. The purposes of the trust were briefly these—Payment to the pursuer Mrs Sawrey-Cookson of an alimentary liferent of the free yearly income; payment of a similar liferent to her husband in the event of his survivance; payment of the capital on the death of the survivor of the spouses to the children of the marriage, and failing children, payment of the capital on the death of Mr Cookson, should he survive his wife, to the heirs and representatives of Mrs Cookson, or in the event of her survivance to herself. Mr Sawrey Cookson was not a party to the said trust conveyance, and it was averred by the pursuers that he was not aware of its existence until some time after the marriage.

With regard to the execution of the trust conveyance and settlement by Mrs Sawrey-Cookson, the pursuers averred:—“(Cond. 6) … Some little time before the execution of the deed the pursuer Mrs Sawrey-Cookson was told by her father that it was usual and proper for her prior to her marriage to make what he termed her ‘ will,’ and shortly thereafter he further informed her that a deed for that purpose had been prepared by his agents, and would be presented for her signature. No explanation whatever was given to the pursuer Mrs Sawrey Cookson of the nature and effect of the deed so prepared beyond this, that, as above-stated, she had then been led by her father to believe that it was of the nature of a testamentary settlement. On 5th June 1890 the pursuer was taken by her father to the office of Messrs Hamilton, Kinnear, & Beatson, W.S., Edinburgh,

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where she and her father executed the deed in presence of two of the staff in the office. The pursuer signed said deed in obedience to her father's wishes and at his request. Prior to signing the same the pursuer had not seen the deed or any draft thereof, or been given any opportunity of examining or considering its terms, or of advising with others as to the propriety of her signing the same. The deed was not read over to her at the time of its execution, and neither then nor at any time prior thereto was the nature and effect of said deed explained to her. The pursuer Mrs Sawrey-Cookson, who was, as before stated, then in minority, was not represented by any independent legal adviser, and at the time she executed the said deed was in complete ignorance of its true nature and effect. Said deed was signed by her in the erroneous belief, induced by the representation of her father, as above stated, that the deed was merely of a testamentary character. The pursuer was not aware that said deed was of the nature of a matrimonial trust intended to take immediate effect, and to be irrevocable, and its proposed purpose and effect was not explained to, but was on the contrary concealed from, her by her father and those advising in the matter. Had the true character of the deed been explained to the pursuer she would not have signed the same.” The defenders in answer averred that Mrs Cookson was at the time of executing the deed fully aware of its purpose.

With regard to the execution of the receipt and ratification, the pursuers averred:—“(Cond. 8) In or about May 1892 the pursuer Mrs Sawrey-Cookson, in terms of the reserved power in her favour contained in the deed, requested and obtained from the trustees payment of a sum of £500, and thereafter she on various occasions made application to the trustees for further payments up to at least the limit of £2000 prescribed by the deed. These applications were uniformly refused. In or about the beginning of 1894, owing to expenditure on a new residence and other causes, the pursuer Mrs Sawrey-Cookson's financial needs became pressing, and some creditors were threatening action. She again appealed to the trustees, who declined to consider the same unless she and her husband were prepared to ratify the trust deed. To this course the pursuer Mrs Sawrey-Cookson declined to assent, and certain correspondence on the subject then ensued between her then solicitors … and Messrs Petch & Smurthwaite, solicitors, London, acting for Messrs Bannatyne on behalf of the trustees. The trustees however adhered to the position that ratification of the deed must precede any capital payment by them to Mrs Sawrey-Cookson. It was represented to the pursuer Mrs Sawrey-Cookson that any action at her instance to enforce her demand against the trustees would be most prejudicial to her father's health, and also that on her signing the document in question all her then debts would be settled by the trustees. The pursuer Mrs Sawrey-Cookson throughout protested to her father and to the defenders and their advisers that she was being coerced into ratifying the trust deed, and that undue advantage was being taken of her and her husband's then financial straits. She was informed that bankruptcy proceedings would issue against her at the instance of creditors, and that no alternative was open to her other than compliance with the trustees’ conditions. The pursuer Mrs Sawrey-Cookson was further at the time in a weak state of health and suffering from a severe mental strain owing to the embarrassed state of her affairs. Ultimately, under the pressure brought to bear on her by the trustees and those representing them, and in view of her urgent financial difficulties, the pursuer Mrs Sawrey-Cookson and her husband were forced to comply with the trustees' demand that she should confirm the trust deed, and the receipt and ratification hereinafter mentioned was accordingly signed.… (Cond. 10) Said receipt and ratification was granted by both pursuers, as the trustees were well aware, in consequence of the financial pressure to which they were at the time subjected. When said document was first presented to the pursuer Mrs Sawrey-Cookson for signature on 16th March 1894 she declined to sign it on the ground that the trustees were, in the circumstances, putting undue pressure upon her.… The pursuer Mrs Sawrey-Cookson was apprehensive that by signing said receipt and ratification her right to reduce the trust conveyance on the grounds before mentioned might be in some degree prejudiced, and it was mainly for this reason that she declined to sign the document when first presented for her signature. She subsequently however had an interview with Mr Smurthwaite, who was acting for the trustees, and who is her brother-in-law. Mr Smurthwaite stated to the pursuers that the document was truly only of the nature of a receipt, and was only required by the trustees as ‘evidencing her good faith,’ and that her father was prepared to assist solely on the condition that she signed the same. Said statements were in point of fact untrue. In consequence of said statements, and of the pressure brought to bear on her, the pursuer Mrs Sawrey-Cookson was however induced to sign the document.… When signing said document she stated that she did not do so of her own free will but ‘under duress.’ The said document contained no recital of the clauses of the trust-deed, and in signing it the pursuer's husband understood that he was merely as his wife's guardian signifying his approval of the monetary transaction then in hand.… The trustees and those advising them were, it is believed and averred, at the time fully cognisant that it was within the power of the pursuer Mrs Sawrey-Cookson to recall the trust-deed, but, contrary to their duty, they concealed this both from the pursuers and their advisers. Neither the pursuer Mrs Sawrey-Cookson nor her husband were at this time aware, nor had they been advised, that it was within Mrs

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Sawrey-Cookson's power, and that she was legally entitled, to revoke the trust-deed, and they both signed said document in complete ignorance of their legal rights, and in particular of the pursuer Mrs Sawrey-Cookson's right to revoke said trust-deed. Had the pursuer Mrs Sawrey-Cookson and her husband been aware that said trust-deed was revocable they would have declined to sign the deed of ratification.… Said receipt and ratification was executed by the pursuers sine causa in ignorance of their legal rights, and under essential error as to its import and effect.

… With reference to the defenders' averments added by way of amendment, it is denied that the law of England is to the effect stated, or at least has any such effect in cases where the deed sought to be ratified either contains a clause of revocation or is otherwise revocable at thewill of the granter, or is truly testamentary in character.” (The words in italics were added by way of amendment in the Inner House.)

In answer the defenders stated that the pursuers in granting the ratification were fully aware of all their rights and had an independent legal adviser. They “exlained that the trust-deed was executed by the pursuer Mrs Cookson in contemplation of her marriage with a domiciled Englishman, and that the revocability of said deed falls to be decided by the law of the matrimonial domicile— videlicet, the law of England, according to which a unilateral settlement made by a wife prior to and in contemplation of marriage is after the marriage irrevocable by either or both of the spouses. In any event, on her marriage and consequent acquisition of an English domicile, Mrs Cookson by the law of that country became incapable of affecting or revoking the said trust deed, either with or without the consent of her husband. By the law of England the effect of marriage is to incapacitate a wife from affecting or revoking, even with the consent of her husband, rights already created by her by any unilateral deed of settlement in contemplation of the marriage. The trust deed by Mrs Cookson thus became irrevocable on her marriage. Further, the meaning and effect of the receipt and ratification fall to be decided by the law of England, which was the lex domicilii et loci actus, and according to which a voluntary or contractual postnuptial settlement by one or both, respectively, of the spouses, or a postnuptial settlement in pursuance of ineffectual antenuptial marriage articles, are all irrevocable at the instance of either or both of the spouses. The said ratification was thus irrevocable.” (The words in italics were added in the Inner House.)

The pursuers pleaded —“(1) The writs under reduction having been executed under essential error as to their import and effect, as condescended on, the pursuers are entitled to decree of reduction as craved. (2) The writs under reduction having been executed under essential error as to their import and effect, induced by misrepresentation and concealment as condescended on, the pursuers are entitled to decree of reduction as craved. (4) The pursuers are entitled to decree of declarator as craved, in respect—(a) said trust conveyance and settlement was and is revocable by the pursuer, at least with her husband's consent; and (b) the nature and effect of said trust conveyance and the pursuer's right to revoke the same were in no wise affected by Mrs Cookson's marriage or by her consequent acquisition of an English domicile, or by the granting of the said receipt and ratification.” (The words in italics were added in the Inner House.)

The defenders pleaded—“(1) The pursuers’ statements are irrelevant. (3) The defenders are entitled to absolvitor, in respect that (a) the trust conveyance and settlement having been executed by the pursuer Mrs Cookson in contemplation of her marriage with a domiciled Englishman, the revocability thereof falls to be decided by the law of England, according to which it is irrevocable at the instance of the pursuers; (b) separatim, in respect that the capacity of the pursuer Mrs Cookson to revoke said trust-deed and conveyance falls to be decided bq the laic of England, and that according to that law she is incapable of revoking said deed either ivith or without the consent of the pursuer Mr Cookson; (c) in any event, the receipt and ratification having been executed in England by spouses domiciled in England, falls to be construed and given effect to according to the law of England, and accordingly the receipt and ratification is irrevocable, and renders said trust conveyance and settlement irrevocable at the instance of the pursuers.” (The words in italics were added in the Inner House.)

On 14th June 1905 the Lord Ordinary ( Ardwall) pronounced this interlocutor—“Finds (1) that the trust conveyance and settlement libelled, taken by itself, is revocable by the pursuer Mrs Sawrey-Cookson; but (2) that standing the receipt and ratification also libelled, the pursuers are barred from reducing or revoking the said trust conveyance; (3) that the pursuers allege that they are entitled to have the said receipt and ratification reduced, as having been executed under essential error as to its import and effect, induced by misrepresentation and concealment: Therefore, before further answer, allows to the parties a proof of their averments relating to (First) the granting and execution of the receipt and ratification under reduction; and (Second) the law of England applicable to both and each of the deeds under reduction.” …

Opinion.—“In this action Mrs Catherine Anna Stirling or Sawrey-Cookson, with consent of her husband, and he for his own interest, seek to reduce a trust conveyance executed by Mrs Cookson before her marriage, and a receipt and ratification granted by Mrs Sawrey-Cookson and her husband on 17th March 1894; alternatively, declarator is asked that the said trust conveyance is revocable by Mrs Sawrey-Cookson; that she is entitled to revoke it; and that upon

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such revocation the defenders, who are the trustees under the trust conveyance and settlement, are bound to denude of the whole trust-estate in favour of Mrs Sawrey-Cookson.

“The first question argued to me was whether the trust-conveyance executed by Mrs Sawrey-Cookson was revocable by her prior to the execution of the receipt and ratification under reduction. It was conceded by counsel for the defenders that if that question is to be judged by the law of Scotland, the present case is ruled by the decision in Watt v. Watson, 16th January 1897, 24 R. 330, but he maintained that as the trust conveyance and settlement was truly a matrimonial deed, in respect that it bore to be executed in view of an intended marriage, and contained provisions in favour of the granter's future husband and possible children, the question of its revocability fell to be decided by the law of the matrimonial domicile; that the matrimonial domicile admittedly was English, and that by English law such a deed was not revocable by either or both of the spouses. I am of opinion that the question of the revocability of the deed must be judged of by the law of Scotland, that being the law by which it was intended at its execution by the parties that the deed should be governed. Several considerations support this view. (1) The deed itself is in Scottish form, was executed in Scotland by a domiciled Scotchwoman, with the consent of her father as her curator, who was also domiciled in Scotland; (2) it appears to have been intended that the trust should be managed in Scotland by the family law-agent, who was nominated one of the trustees, and power to employ whom as law-agent is specially given in the trust-deed; (3) by the second and third purposes of the trust, alimentary liferents are given, and such provisions are ineffectual according to the law of England—see Lord Shand's opinion in Corbet v. Waddell, 7 R. 208; (4) in the event of there being no children of the marriage, and of the truster dying intestate, the fee of the trust estate is destined ‘ to my own legal representatives whomsoever according to the law of Scotland’; (5) further, there is a declaration that the provisions conceived in favour of the husband and children of the marriage are to be in full of all claims arising to them, whether under the Married Women's Property (Scotland) Act 1881, or under any other statute or at common law, and further in the same clause, all of which is conceived in terms applicable to a Scotch trust, the jus mariti and right of administration and curatorial power of husbands is excluded from provisions descending to females.

“It was ably argued for the defenders that while the interpretation and effect of the deed itself might fall to be judged of according to the law of Scotland, yet the rights of the parties interested in the deed to revoke it fell to be regulated by the law of the matrimonial domicile. I cannot assent to this reasoning. I consider that the revocability of a deed must be judged of by the law which regulates the legality and operation and effect of the deed in other respects, and so judging the matter I am of opinion that the deed of conveyance was revocable. (See Corbet v. Waddell, quoted supra, and in re Fitzgerald, L.R. 1904, 1 Ch. D. 573, and Duncan v. Canon, 18 Bevan, 128.)

“The next point for decision is as to the effect of the receipt and ratification under reduction. It was maintained for the pursuers that this deed must follow the same rule as the trust conveyance, it being an ancillary deed to it, and indeed primarily, a receipt for moneys payable under it, and the case of Duncan v. Canon, above cited, and Tweedie v. Maunder, L.R., 1901, 1 Ch. D. 547, were referred to. I cannot assent to this argument. The deed in question is not only a receipt but a ratification. The following is the clause of ratification:—

‘ Further, I, with consent and concurrence of my said husband, and he for all right competent to him in the premises, do hereby not only ratify, adopt, and confirm the said trust conveyance and settlement, and the whole heads, clauses, and provisions therein contained, but also ratify and approve the whole actings of the said trustees thereunder.’ The deed contains a clause of registration, and is duly signed by both pursuers and authenticated in the English form. I accordingly consider this deed a valid ratification and adoption by both the spouses of the trust conveyance, and it certainly would be a novel doctrine to hold that all deeds of ratification were subject to revocation or reduction in the same way as the deeds which they purport to ratify. It would follow, of course, from such a doctrine that ratification of one deed by another would be impossible.

“It was practically admitted by the counsel for the pursuers that this deed, if allowed to stand unreduced, would be a complete answer to an action of reduction at the instance of the pursuers of the original trust conveyance, and, as already stated, I think that standing unreduced it is equally valid as a bar to revocation by the pursuers or either or both of them.

“The pursuers maintained further that the receipt and ratification, apart from its ancillary relation to the other deed, is itself revocable by the law of Scotland, just as it would have been if it had been a repetition in extenso of the original trust conveyance which it bears to adopt and ratify.

“I am of opinion, on the contrary, that it is irrevocable. It must be noticed that the trust conveyance is adopted not only by the wife but by the husband, and I think that this amounts in law to the execution of a postnuptial contract, for reading the two deeds together I think that is the legal result which must be arrived at. Now, even supposing the deeds to be judged of by the law of Scotland, I think that upon the authority of such cases as Allan v. Kerr, 8 Macph. 34; Low's Trustees, 5 R. 185; and Peddie, 18 R. 491, such deed being a reasonable marriage contract is not revocable at the

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instance of either or both of the spouses. But I consider further that the receipt and ratification being a matrimonial deed executed in England stante matrimonio must be given effect to as an English deed, and according to the averments of the defenders, which will require to be proved, not being admitted, such a deed is irrevocable.

“The pursuers, however, maintain that they have set forth a relevant case for reduction of the said ratification on the ground of essential error as to its import and effect, induced by misrepresentation and concealment on the part of the defenders. I must say that I have difficulty in holding that a relevant case has been stated, but having regard, particularly, to the averments regarding Mr Smurthwaite's intervention, I am not piepared to dispose of the case without a proof. In the view I have taken of the case, there seems no reason for a proof in support of the reductive conclusions so far as affecting the trust conveyance. As there requires to be a proof regarding the law of England bearing on the question of revocation of the receipt and ratification, I think it as well that there should be also a proof regarding the law of England as regards the revocability of the trust conveyance; such proof should not add much, if anything, to the expense, and it would obviate the necessity for further proof in the event of my first finding being hereafter held to be erroneous.”

The pursuers reclaimed, and argued—Both the trust conveyance and the ratification were revocable. The ratification was purely ancillary to the principal deed, and fell to be construed by the same law. The ratification was not a deed between the spouses, but a receipt by the lady to certain trustees. The main cause for which it was granted was to secure the trustees. It was prepared in Scotland, was in Scotch form, and bore to be executed in virtue of a reserved power in a Scotch deed. It ought therefore to be construed according to the law of Scotland — Duncan v. Canon, 1853, 18 Beav. 128, alp. 1855, 7 De G. M. & G. 78; De Nicols v. Curlier, [1900] AC 21. The effect of the ratification was to confirm the deed as it was— i.e., subject to revocation—and no amount of ratification could render such a deed irrevocable, or defeat the inherent power of the spouses to revoke it. The ratification was not a postnuptial contract, but even if it were it would be revocable as a donation to the husband, who gave nothing in exchange for it. There was no issue of the marriage in existence, and therefore no jus quæsitum. In the case of Low's Trustees, referred to by the Lord Ordinary, the deed was a unilateral one by the husband, equivalent to a reasonable provision, and therefore irrevocable. The pursuer was entitled to an issue of essential error. As to Mrs Cookson's alleged incapacity by the law of England to revoke the trust conveyance, the following authorities were referred to— Duncan v. Canon cit. sup.); Peillon v. Brooking, 1858, 25 Beav. 218; Pouey v. Hordern, [1900] 1 Ch 492; Tweedie v. Maunder, [1901] 1 Ch 547; Bald v. Bald, 1897, 76 L.T. 462.

Argued for respondents—The trust conveyance fell to be governed by English law. That was the intention of parties. The deed was made in contemplation of marriage, and in view of the fact that after marriage the parties would be domiciled in England. By the law of England the deed was irrevocable. After her marriage Mrs Cookson was domiciled in England, so that the lex loci contractus and the lex loci domicilii were the same. The law of England therefore determined her capacity to revoke the trust conveyance— Cooper v. Cooper, February 24, 1888, 15 R. (H.L.) 21, 25 S.L.R. 400. By the law of England the trust conveyance was irrevocable, and therefore Mrs Cookson after her marriage was not entitled to revoke it—Westlake, Private International Law, 45; Dicey, Conflict of Laws, 543, rule 146; Guepratte v. Young, 1851, 4 De G. & S. 217. The present case was more in the category of Lashley v. Hog, [1804] 4 Paton, 581, than of De Nicols v. Curlier (cit. sup.). Reference was also made to Fitzgerald, [1904] 1 Ch 573; and Corbet v. Waddell, November 13, 1879, 7 R. 200, 17 S.L.R. 106. The ratification adopted and rendered contractual a deed which was previously not contractual. The trust conveyance and the ratification read together were equivalent to a postnuptial settlement in the law of Scotland, and as there was nothing unreasonable about it it was irrevocable—Fraser, H. & W. ii, 1503; Allan v. Kerr, October 21, 1869, 8 Macph. 34, 7 S.L.R. 9; Peddle v. Peddie's Trustees, February 6, 1891, 18 R. 491, 28 S.L.R, 336. All that was necessary in order to render the trust conveyance contractual was the husband's consent. That was given in the ratification, and therefore standing the ratification the trust conveyance was irrevocable— Barras v. Scottish Widows' Fund Society, June 27, 1900, 2 F. 1094, 37 S.L.R. 831. There were no averments that the pursuers were induced to grant the ratification by misrepresentation. Mere averments of essential error were not enough— Gray v. Binny, December 5, 1879, 7 R. 332, 17 S.L.R. 210; Stewart v. Kennedy, March 10, 1890, 17 R. (H.L.) 25, 27 S.L.R. 469. Mrs Cookson had a separate legal adviser. That was an element to be considered— Menzies v. Menzies, March 17, 1893, 20 R. (H.L.) 108, at p. 142, 30 S.L.R. 530. Moreover, the parties were then dealing at arm's length, so that concealment was out of the question. In any event, the defenders were entitled to a proof of their averments as to the law of England.

At advising—