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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hepburn v. Brown and Others [1814] UKHL 2_Dow_342 (6 June 1814)
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Cite as: [1814] UKHL 2_Dow_342
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SCOTTISH_HoL_JURY_COURT
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(1814) 2 Dow 342
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.
During the Session, 1813–14.
53 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
No. 26
v.
MUTUAL CONTRACTS BETWEEN HUSBAND AND WIFE.
A deed or contract between husband and wife, which is in substance a gratuitous settlement upon the wife, or a pure donation on the part of the husband, is revocable by him,— secus, if it be a mutual contract between husband and wife, for consideration or onerous cause; or if it be only a rational provision, under the circumstances, for the wife; and the Court will not weigh in nice scales what is, or is not, too much. Therefore, where a mutual contract was entered into between a farmer and his wife, by which the survivor (there being at the time no children) was to have the absolute disposal of the whole of their property, of every description, with the exception of the lease of a farm on the one hand, and a small reversionary interest on the other—the husband having, at the time of the marriage, only a share of the stock (the whole stock being worth about 1000 l.) of a farm, of which, soon after the marriage, he got a lease, (excepted as above,) and some time after,
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and before the contract, became entitled, in right of his wife, to a sum of 375 l. left her by her father, together with the reversionary interest excepted as above—it was held by the House of Lords, reversing the decision of the Court of Session, that, under these circumstances, her assignation and disposition to her husband of all (except as above) that she possessed, was, or might become, entitled to—her relinquishment of her rights at law—her binding herself to provide well for the children, if any there should be—formed a sufficient consideration on her part, and that the husband alone was not entitled to revoke the contract; the Lord Chancellor at the same time intimating an opinion, that, under the circumstances, the provision made for the wife by the contract could not be considered as excessive, though the parties afterwards accumulated property to the amount of about 5000 l.
Marriage and pecuniary circumstances of G. Cunningham and A. Hepburn.
George cunningham, the son of a farmer in the county of Haddington, intermarried with Agnes Hepburn, the daughter of a neighbouring farmer, in 1761,—no previous marriage contract having been made between them. At the period of the marriage, George Cunningham lived with his mother, and, in the absence of an elder brother, managed a farm belonging to the family; the father being then dead, having left no other provision for his widow and children than the lease and stock of the farm. The stock was worth about 1000 l. and the lease expired in 1763. What share of this fund belonged to George Cunningham did not appear; but in 1763 he got a new lease of the farm on his own account, and the stock was valued over to him. In 1774 he became entitled to a sum of 375 l. in right of his wife, her father having died, leaving her that sum, together with the reversion of the share of an imbecile sister.
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Deed of 1775, between husband and wife. The survivor to have the whole of their property.
In 1775—there having been no ante-nuptial contract—a deed was executed for the purpose of regulating the interests of the parties. By this deed it was stipulated between the husband and wife, that the longest liver of the two should have the absolute property and disposal of all that might belong to them at the dissolution of the marriage, with the exception of the husband's lease on the one hand, and the wife's eventual right to the patrimony of her sister on the other.
Cunningham and his wife had accumulated considerable property for persons in their line of life before 1783, the period when the lease expired. They then—having no children—removed to Haddington, where they lived till the death of G. Cunningham, in 1803.
Deed of 1795, by the husband, revoking the former deed.
In 1795 G. Cunningham executed a testamentary instrument, or trust deed, by which he assigned and disponed all his moveable and heritable property to his wife, in life-rent; then to trustees, for payment of debts and legacies, satisfaction of his wife's liferent, and then for behoof of one George Milne, of Sydeserf, as residuary legatee; and he revoked the former settlement, which he stated as having been lost or mislaid, but which afterwards turned out to have been in the possession of his wife. In 1801 he purchased a house in Haddington, which he disponed to his wife in life-rent, and to G. Milne in fee. Cunningham died in January, 1803, and Milne in December, 1803, having executed a trust disposition in favour of the trustees under Cunningham's latter settlement.
Death of the husband, and action by the wife to set aside the settlement of 1795.
Upon the death of George Cunningham, his
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June 18, 1806. Interlocutor of the Lord Ordinary.
“Finds, that the post-nuptial contract betwixt the late George Cunningham and the Pursuer, Mrs. Agnes Hepburn, was in substance a gratuitous settlement by Mr. Cunningham upon his wife, which, quoad excessum of a rational provision, he was entitled to revoke: Finds, that said settlement was effectually revoked by him, by the deed of date 20th May, 1795, which also contains a rational provision in favour of the Pursuer; and therefore assoilzies from the reduction at the Pursuer's instance, sustains the defences, and decerns.”
To this interlocutor the Court adhered, and an appeal was lodged.
Something was said as to the deed of 1775 not having been properly delivered, and as to the wife having infringed it by applying to her own exclusive use acquisitions which, under the deed, ought to have been brought into the common fund. But these circumstances were not much relied upon in argument, and not at all in judgment.
Whether the deed of 1775 was a donation to the wife which the husband could revoke, or a mutual remuneratory contract which could not be revoked without consent of both parties.
Argued for Appellant. ( Adam and Horner.)—The question was, Whether this was a gratuitous donation which the husband alone might revoke, or a mutual contract which he could not revoke
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It was quite clear that the wife had the powder, by such a mutual remuneratory contract as this, to disappoint her next of kin; and this therefore raised a consideration. The point was clearly established in Crawfurd's case. The contract was besides a disposition of her heritage, in case she had acquired any.
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Palmer v. Bonnar, Fac. Coll. Jan. 21, 1810.
As to the question of excess, the contract was sufficiently reasonable. The wife, it ought to be kept in view, was entitled to half the goods in communion. It had been said, that she had no property at all in this fund till her husband's death. This was not true, though the husband, no doubt, had the absolute management. Cunningham's property at the time of the marriage was wholly of that description which belongs to married persons jointly, the half of which, on the death of the wife, passes to her representative, or next of kin, exclusive of the husband, if she had not renounced or disposed of the right. The renunciation was an important consideration; for otherwise, in case of her predeceasing him, the consequence might to him have been ruinous. It was in vain to say that he might have invested the common property in securities excepted by the law from the communio bonorum. To have done so purposely would have been fraudulent and injurious to the husband himself. The contract was not then in substance a gratuitous settlement on the wife. Besides, the wife was certainly not entitled to revoke what she had thereby granted or renounced; and if it was irrevocable by the wife, and good against her representative, it was difficult to contend that it was revocable by the husband. There existed a great number of contracts resting on the security of the law as stated for the Appellant, and it would make wild work if that law were now subverted.
The following decisions, which have settled the law upon this subject, are to be found collected and abridged in the Dictionary of Decisions, ( voce
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Ersk. b. 1. t. 6. s. 29, 30.
Children of Woolment, Stair, Nov. 20, 1662.— Steven v. Dunlop, Feb. 1. 1809.
Argued for Respondents. ( Romilly and Abercromby.)—Every deed between married persons, whatever be its form, is revocable by the donor, if it be gratuitous, or imports a donation. Mutual remuneratory grants are binding on both parties, but
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This previous deed was clearly gratuitous, as the husband received nothing except that to which he was entitled by virtue of the marriage. But a valuable consideration was farther attempted to be raised, by contending that a wife was entitled to her share of the goods in communion, and that by the deed in question Mrs. Cunningham relinquished such right.
A wife, however, has no actual or indefeasible right to the goods in communion. Her husband may lay out the whole of them in the purchase of land, or upon bonds bearing interest, by which the right of the wife is altogether excluded. But he cannot by will, or any deed which is not to take effect until his death, disappoint either her, or his children, of their respective rights; viz. her of her jus relictæ, (which, on the event of there being children, amounts to a third, and in the event of there being no children, to a half of the property, which is termed simply moveable,) and children of their legitim, which is in the same proportion. But a wife has not, more than her children, any thing in virtue of this right which she can convey. She has a mere spes successionis, which may be destroyed by the husband during his life-time, but
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June 6, 1814. Observations in Judgment.
Prior to the marriage there had been no contract executed; but in 1775 they agreed to regulate the interests that might be affected by the death of either of them. Their Lordships knew, that by the law of Scotland, the wife, at the death of the
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Post-nuptial marriage contract, 1775.
Recital.
Conveyance and obligations by the husband.
Warrants.
Proviso for payment of his debts, and for maintaining children.
Acceptance by the wife in lie of legal provision.
By this deed, “it was contracted, agreed, and ended, between George Cunningham, farmer in Whitekirk, on the one part, and Agnes Hepburn, his spouse, on the other part, in manner and to the effect following; that is to say, The said parties, considering that they have been married several years without child or children now existing, and without having hitherto entered into any contract or other settlement, whereby the said Agnes Hepburn is not secured in a provision or share of her husband's means and effects, as her merits, and his inclination and regard, entitle her to, and as has been communed and agreed upon between the said parties since their said marriage; in contemplation whereof, and the assignation to the tocher and others aftermentioned, the said George Cunningham, by these presents, with and under the provision after specified, assigns, transfers, and dispones from him, his heirs, executors, and all others his assignees, to and in favour of himself and the said Agnes Hepburn, his spouse, in conjunct life-rent during their joint lives, and to any child or children to be procreated between them in fee; whom failing, to him, the said
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The obligation on the part of the husband, then, was to permit her to succeed to his whole property (except as far as concerned the lease) if she survived him. She accepted of this in lieu of her terce and half, and became bound, in case they should have any children, to aliment, educate, and put them out to trades, and to pay them a share of the goods in communion, equal to a half of the whole.
Conveyance by the wife to her husband.
Warrants.
Intendment of the parties.
On her part, she “assigns, transfers, and dispones,”—and on that last word some of the Judges had put a comment, as if she meant to bind her
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Then followed an exception as to her wearing-apparel, &c. and her eventual interest in the provision made for her sister.
They lived many years after, and the husband, without consent of his wife, in 1795, executed another deed, which was as follows:—
Testamentary instrument made by Mr. Cunningham in 1795.
“Considering that upwards of thirty years ago I executed a settlement, which has since been lost or mislaid, whereby, to the best of my recollection, in the event of no children existing at the dissolution of the marriage between me and Agnes Hepburn, my present spouse, all our means and estate were conveyed and to be taken up and enjoyed by the longest liver of us, and the heirs and successors of the longest liver: and whereas, notwithstanding the said Agnes Hepburn has already considerable sums of money in her own right, provided to her exclusive of my jus mariti, the interest of which sums she has for several years applied to her use; yet it is nevertheless incumbent on me to make a suitable and rational provision for her in the event before mentioned.” On this narrative, the instrument purports to assign and dispone to Mrs. Cunningham, in life-rent, and upon her decease, to George Robertson, Robert Brown, and Walter Lockhart, and the survivor and survivors of them, and their assigns, in trust, the
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Grounds of action.
The present cause had been instituted for the purpose of trying whether the first settlement was a contract binding on both husband and wife, and whether the second could by the law of Scotland operate as a revocation of the other.
It appeared that in the Court below a great deal of stress had been laid on a comparison of the value of the effects of the parties. But it did not appear to him that in this case any argument of weight could be drawn from a comparison of the value of the effects.
A question had arisen as to the delivery of the first instrument, but that did not seem to have been much pressed; so that the case was finally reduced to this point,—whether the Court below was right in the conclusion, that the deed or contract was not binding on the husband, on the principle stated in the interlocutor, that it was “in substance
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Grounds of judgment below.
Then the proposition on which the judgment was founded was this,—that the settlement was gratuitous; and that therefore, in as far as it was excessive, it might be revoked. It appeared then, that, if it was not gratuitous, or if it was not beyond a rational provision, it could not be revoked.
Their Lordships would recollect its being noticed at the bar, that suppose the husband could have made such a deed as the second, he could only propose to his wife to elect between the provision there made for her and her rights at law. That however was not the question which he meant to put forward, but only this,—Whether the deed was gratuitous, or whether it was excessive, or, in other words, more than a rational provision?
A gratuitous grant from a husband to his wife is revocable by him.
Without stating at length the subsequent interlocutors, it was a circumstance of fact, that the Court had been so divided as to render this decision,—the judgments of the Court being always to be treated with the greatest respect,—of as little authority as it was possible for a decision of the Court of Session to be. Much difference of opinion had prevailed among Judges of high character; but it was agreed on all hands, that if the first contract was on the part of the husband a pure donation, it could not bind him: but that if it was a mutual contract for consideration, it would bind him; and that the representatives, or next of kin, of the wife were entitled to the benefit of it. In considering
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The contract (1775) neither gratuitous nor irrational.
In deeds between husband and wife, for a rational provision to the latter, it was not to be weighed in nice scales what was, or was not, too much.
The husband then, at the time of the execution of the previous deed, had only the lease of the farm, (which was excepted,) and the stock on the farm, which appeared to have been the whole of his personal property. Their Lordships were aware, that by the law of Scotland, if she had pre-deceased her husband, her next of kin would have taken the half of the goods in communion; that was, as he understood it, one half of the stock on the farm. Under such circumstances, what was there irrational or gratuitous in the contract, when she agreed not to claim her terce, to educate the children, put them out to decent trades or employments, and secure a provision for them equal to half the goods? Nor was this the only view in which the question was to be considered. If she pre-deceased her husband, her next of kin would be barred; and if she relinquished for them, it was very difficult to say that this deed was gratuitous, or a pure donation. If not gratuitous, could it be justly said not to be a rational provision? Or were they to weigh in nice scales what was, or was not, too much?
Judgment.
He proposed, therefore, that it should be declared that this deed was not gratuitous, but that it was binding on both, and was not revocable by the husband alone; and to reverse the judgment
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Solicitors: Agent for Appellant, Chalmer.
Agent for Respondent, Mundell.