Scottish Court of Session Decisions

Mrs Jessie Reid Marshall or Pillans, residing at Caldergrove, Newton, Lanarkshire, wife of John Alexander Sillars, hydraulic engineer, Campbell Street, Govan, Glasgow, presented a petition to the Court for authority “to dispense with the consent of the said John Alexander Sillars to the petitioner's election to accept the conventional provisions in her favour contained in the said trust-disposition and settlement and codicil of her father, the said deceased John Marshall, in lieu of claiming her legal rights, and to any deed or deeds necessary for declaring or recording her election as aforesaid.”

The petition set forth—“1. That the petitioner is the wife of the said John Alexander Sillars, to whom she was married on 14th August 1884. There are no children of the marriage. The spouses did not enter into any antenuptial contract of marriage. 2. On 26th January 1888 the estates of the petitioner's husband, the said John Alexander Sillars, who was then a partner of the firm of M'Guffie, Sillars, & Company, bonded store proprietors, Glasgow, as such partner and as an individual, were sequestrated. On 3rd February 1888 sequestration was awarded of the estates of the said firm and of Alexander M'Guffle, the only other partner thereof, as such partner and as an individual. In view of the irregular nature of certain transactions in which the said firm and its partners had been engaged, the petitioner's husband thought fit to

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leave the country and went to Spain, where he remained for a time. He failed to appear at the diet for his examination on 22nd February 1888, but subsequently appeared and was examined on 16th October 1888. He was discharged without composition on 3rd April 1890. 3. When the petitioner's husband left the country in February 1888 the petitioner, who up till then had resided with her husband, returned to her father's house, where she has since resided. She was greatly distressed by her husband's conduct, and decided to have no further relations with him. Shortly after his discharge, the petitioner's husband, in July 1890, raised an action of adherence against the petitioner, although he had then no home to offer her and was unable to support either himself or her. The petitioner, however, did not defend the action, and her husband obtained decree of adherence against her. Since he left her in February 1888, petitioner's husband has contributed nothing to her support. 4. The petitioner's father, Mr John Marshall of Caldergrove, hereinafter called ‘the testator,’ died on 24th September 1910. The amount of his personal estate as given up in the inventory thereof was £142,821, 5s. 2d, consisting to the extent of £67,250 of bonds and dispositions in security, and he was also possessed of heritable estate of considerable value.… The testator left a trust-disposition and settlement dated 29th September 1892, with relative codicil dated 16th October 1905, both registered in the Books of Council and Session on 30th September 1910.… 5. By his said trust-disposition and settlement the testator, inter alia, bequeathed to his wife, who survived him, and is now eighty-seven years of age, the liferent of his estate. Upon the death of his wife the testator in the third place directed his trustees to convey his estate of Caldergrove, which is approximately of the value of £10,000, with the furniture, &c., in Caldergrove House, and the whole effects on the estate, to his son Robert, whom failing to Robert's children in fee, whom failing to the petitioner in liferent and his son David, whom failing David's children, in fee. The testator adjected to this bequest a declaration that the petitioner's husband should have no right or title to the said liferent in her favour, which should be exclusive of the jus mariti and right of administration of her husband, and that if the. petitioner should return to her husband's society, regarding which the testator expressed no opinion whatever, the liferent conferred on her should eo ipso cease and determine; and further, that any part of the rents which her husband might have claimed on the dissolution of their marriage by decree of Court or death should not belong or be payable to the petitioner or her representatives or her husband, but should become payable to the testator's son David, whom failing David's children. The testator's son Robert is alive and has one child. 6. By the fourth purpose of his said trust-disposition and settlement the testator directed his trustees on the death of his wife to set aside and retain the sum of £20,000 and to pay the interest or income thereof to the petitioner during all the days and years of her life excepting any period she might live with her husband, should she return to his society, for her liferent alimentary use allenarly, and exclusive of the jus mariti and right of administration of her husband. Further provisions were inserted by the testator excluding the petitioner's husband from any participation in the said liferent. The testator also conferred on the petitioner, in the event of her being the last survivor of his children, power to dispose by testamentary writing of the whole capital of the said sum of £20,000, and any additions thereto. By his codicil of 15th October 1905 the testator increased the said sum to £30,000, and excluded the petitioner from participation in the residue of his estate. The testator in his said trust-disposition and settlement declared that the whole provisions thereby made, so far as in favour of females, should be exclusive of the jus mariti and right of administration of any husbands they had married or might marry, and that the provisions made by him in favour of his wife and children should be in full satisfaction of their legal rights, and that in the event of any of his children claiming his or her legal rights, the child so claiming should forfeit all right under his will. 7. The petitioner is desirous of accepting the conventional provisions in her favour contained in the testator's trust-disposition and settlement and codicil, and of renouncing her right to legitim. She is of opinion that it is to her interest to do so, and she has had the advice in the matter of independent agents and also of counsel. The testator having been survived by his wife and five children, the petitioner would be entitled to one-fifth of one-third of the testator's free moveable estate in name of legitim. If her eldest brother did not elect to collate the heritage, her legitim would amount to £5528, 7s. 4d. or thereby, but if her eldest brother were to collate the heritage her legitim would amount to £6026, 9s. 11d or thereby. Reference is made to the letter of 9th March 1911 by the petitioner's agents to the petitioner's husband contained in the correspondence printed in the appendix. That letter contains a statement of the legitim fund. 8. On 2nd November 1910 the petitioner's husband served upon her a summons of divorce on the ground of desertion. The petitioner did not lodge defences, but her husband has meantime delayed proceeding with the action. A diet of proof was fixed some time ago, but was subsequently discharged on his motion. 9. The petitioner's agents on 9th March 1911 wrote to the petitioner's husband requesting his consent to the petitioner's acceptance of her father's testamentary provisions in her favour and enclosing a deed of consent to her election for his signature, at the same time fully explaining the position of matters. A correspondence ensued.… The petitioner's husband has declined to give his consent to the petitioner's

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election to accept her conventional provisions. 10. The testator's trustees are not in safety to proceed with the administration of the trust estate and to implement the provisions in favour of the petitioner without obtaining a valid acceptance by her with her husband's consent of her conventional provisions in lieu of her legal rights, and the trust adminstration has accordingly been brought to a standstill by the refusal of the petitioner's husband to consent to her election. In withholding his consent the petitioner's husband is not acting in the bona fide exercise of his curatorial rights as the petitioner's curator and administrator-in-law, or for her benefit, but on the contrary is using his position as her curator to her prejudice and to serve some ulterior personal object of his own. He has given no reason for refusing his consent. He has, moreover, delayed proceeding with his action of divorce against the petitioner in order that she may not be released by decree in that action from his curatorial control and so be in a position to make her election without his consent.”

Answers were lodged for John Alexander Sillars, which set forth—“1. Admitted. 2. It is admitted that the firm of M'Guffie, Siliars, & Company was sequestrated in 1888, and that the petitioner, who was a partner of that firm, was also sequestrated as such and as an individual. No irregularities of any kind took place in connection with the said business, and the respondent's residence in Spain was not connected in any way with the sequestration. He appeared for examination on his return in October 1888 and was discharged on 3rd April 1890. 3. It is admitted that the petitioner went to reside with her father in February 1888. He had for some years prior thereto, in connection with business matters, taken a violent dislike to the respondent and endeavoured to injure him at every turn. In pursuance of that scheme he took every step in his power to alienate the petitioner from her husband, and on the respondent's return from Spain declined to let her live with her husband, keeping her practically a prisoner in his house. He also spread slanderous and untrue reports among the respondent's friends in regard to the respondent's domestic life, and threatened him if he did not agree to a voluntary separation he would see that steps were taken by his wife to get a judicial separation. The respondent thereupon in 1890, to vindicate his position, raised an action of adherence against the petitioner, and after proof was led decree of adherence was granted. A charge was given on said decree, but the petitioner was not allowed by her father to obey the order of the Court and resume cohabitation with her husband. The respondent all along has had a comfortable home to offer the petitioner and was anxious she should return to him, and wrote frequently to the petitioner stating this to her and requesting her to return. No notice was taken of these letters, many of which were intercepted by the petitioner's said father, with whom she was residing. It is admitted the respondent has paid nothing to his father-in-law in respect of the maintenance of his wife, the reason being that she was being detained by her father against the respondent's wishes. It is also explained that when the petitioner abandoned her home and went to reside with her father it was partly to take the place of housekeeper for him, the last of his daughters being then married, and when she went to reside there she was handsomely provided by the respondent with both money and furniture. 4. It is admitted the petitioner's father died on 24th September 1910, his will being referred to for its terms, and it is also admitted that the respondent served a summons of divorce on the petitioner on the ground of desertion. It is explained further that he had not then seen the said will, and on applying to the trustees for a perusal of same was refused all information in regard thereto. 5. The respondent has all along desired that the petitioner should return to him as his wife, and also be guided by him in regard to the provisions in her favour under her father's will. He is no way affected in this matter by the extraordinary provisions in the will which purport to deprive the petitioner of all rights in her father's estate if she resumes cohabitation with her husband, although possibly that provision is contra bonos mores and could not be enforced. The will is further evidence of the continuation of the blind prejudice and dislike the said John Marshall had for the respondent. 6. The petitioner, who deserted the respondent, is living apart from him contrary to his wishes and without his consent. He is in no way abusing the exercise of his curatorial right as the petitioner's curator, and is willing and anxious to advise her in regard to the provisions in her father's will, and offers to take her back as his wife notwithstanding the fact that she comes to him penniless if her father's will is to stand.”

Argued for the petitioner—The petition was presented under the nobile officium of the Court, for it was not covered by section 5 of the Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21). Dunnachie, 1910 S.C. 115, 47 S.L.R. 46, apparently had been presented under section 5, but probably it also came rather under the nobile officium, as suggested by the head words. It was necessary for the trustees to protect themselves here. Either the husband's consent was not necessary at all, or it was unreasonably withheld, and the Court should dispense with his consent. On the question whether the husband's consent was necessary to the wife's election, reference was made to Lord M'Laren on Wills, 3rd ed., vol. i, pp. 248–249, and the cases there discussed, viz., Lowson v. Young, July 15, 1854, 16 D. 1098; Stevenson v. Hamilton, December 7, 1838, 1 D. 181, with the remarks thereon by Lord Benholme in Macdougall v. Wilson, February 20, 1858,

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20 D. 658, at 660; and Miller v. Galbraith's Trustees, March 16, 1886, 13 R. 764, 23 S.L.R. 533. The last was the only case which seemed to be against the view that the husband's consent was not essential. [The Lord President pointed out that in that case the wives had changed their minds.] Reference was also made to Bryce's Trustee, March 2, 1878, 5 R. 722, Lord Gifford at 728, 15 S.L.R. 412, and to Fraser on Husband and Wife, vol. i, p. 798.

Argued for the respondent—The husband was not abusing his curatorial power. Until the husband knew whether the condition on which the bequest was to be forfeited was or was not invalid, as being contra bonos mores, it was really impossible for him to consider the question. The Court should not aid the wife in refusing to adhere. [The Court asked counsel for the respondent whether if it were judicially decided that the condition of forfeiture was of no effect the respondent would be willing to give his consent to the acceptance of the conventional provisions, and the petition was continued to next day, when a minute to the above effect was put in.]