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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Diggens v. Gordon [1867] UKHL 49 (20 May 1867)
URL: http://www.bailii.org/uk/cases/UKHL/1867/04SLR0049.html
Cite as: 4 ScotLR 49, [1867] UKHL 49
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SCOTTISH_SLR_House_of_Lords
Page: 49↓
House of Lords.
The Court of Session, 6 Macph. 609.
v.
Subject_Husband and Wife—Antenuptial Contract—Conquest—Successionon.
Facts:
Held (aff. C. S.) that a conveyance by a wife in an antenuptial contract of whatever she might “conquest or acquire” during the marriage, was not to be construed technically, but cumprehended estate to which she succeeded under her parents' marriage-contract, and as heir ab intestato of her father.
On 4th January 1860 an antenuptial-contract of marriage was entered into between Francis John Diggens and may Nisbet, daughter of Mr Ralph Nisbet of mainhouse. Mr Diggens conveyed to trustees a policy of insurance on his life for £200, to be held for his wife and the children of the marriage. Miss Nisbet, on the other hand, conveyed to the trustees, to be held for herself and the children of the marriage, 100 shares of the stock of the North of Scotland Banking Company; and farther, “all sums of money, goods, gear, and effects, and heritable and moveable estates of every description, wheresoever situated, which she may conquest or acquire during the subsistence of the said intended marriage.” On 5th January the marriage took place. In November 1863 Mr Nisbet died. By decd, dated in 1855, he directed his marriage-contract trustees to pay over to his daughter a sum of £ 1500, being one-half of a sum of £ 3000 which had been settled on his children by his marriage-contract. Mr Nisbet died intestate as to the rest of his estate, heritable and moveable, which was of considerable value. He left two daughters, of whom Mrs Diggens was the elder.
Mrs Diggens, with concurrence of her husband, brought an action against the surviving trustee under their marriage-contract, to have it found that the property to which she had succeeded from her father's estate belonged absolutely to her and her husband, and was not carried to the trustees under her marriage-contract by the clause of “conveyance in that deed. The plea upon which she rested her claim was, that the conveyance of “conquest” in her marriage-contract was to be construed in the strict sense of the term-that is, did not comprehend sums to which she succeeded
Page: 50↓
The defender, on the other hand, contended that the words “conquest” and “acquire” were not to be read in any strict or technical sense, but in the simple and natural meaning of everything which the wife might become possessed of, or get right to during the subsistence of the marriage. The Lord Ordinary ( Ormidale) sustained the claim of the pursuers. The Second Division of the Court reversed, holding that the clause of conquest was not to be construed technically, but that, viewing the matter as a question of the intention of parties, the claim of the trustee was well founded.
The pursuers appealed.
The Attorney-General ( Rolt), Sir Roundell Palmar., Q.C., for Appellants.
Gifford, Q.C. and Young, for Respondent.
The
Under the marriage-contract of Mrs Diggens' father and mother, the father, after binding himself and his heirs and executors to pay to his wife, in case she survived him, an annuity of £150, for securing such annuity bound and obliged himself to settle and invest an heritable bond for $3000 in trustees, the interest to be paid to himself during his life, and after his death to be applied in payment of the widow's annuity, and the principal sum, after the death of both the parties, left to the child or children of the marriage, but in such proportions and at such times as the father might direct, by a writing under his hand, and failing of such writing, to be divided equally amongst the children of the marriage.
There were two daughters of the marriage. The father having survived his wife, by a deed of direction, dated 11th July 1855, appointed one-half of the £3000 above mentioned to the appellant by her then name, Mary Wilhelmina Nisbet, reserving his own liferent, and the deed contained these words:—“I dispense with the delivery hereof, and declare these presents to be good, valid, and effectual, although found lying by me, or in the custody of any other person to whom I may intrust the same, undelivered at my death.”
The father died intestate on the 2d November 1863, leaving heritable and moveable estates of considerable value, to which the appellant and her sister became entitled in equal moieties.
The questions upon the appeal are, whether the sum of £1500, appointed to the appellant by the deed of direction of the 11th July 1855, and the moiety of her father's heritable and moveable estate belong to the respondent, as trustee under the marriage-contract of the appellants, as having been “conquested or acquired during the subsistence of the marriage.”
In the construction of every instrument, whether will or deed, word or mark, prima facie be assumed to have been intended to be used in their ordinary sense, and if they have technical meaning, that meaning must likewise prevail, unless it is apparent from the context or from the whole purview of the instrument that they require a different interpretation.
The word “conquest” is a word of technical signification, and, according to Mr Bell, in section 1974 of his Principles of the Law of Scotland, “when used substantively in marriage-contracts, comprehends whatever is acquired, whether heritable or moveable, during the marriage, by industry, economy, purchase, or duration, but not what comes by succession or legacy or accession to a subject already acquired.”
The ordinary provision of conquest inserted in marriage-contracts applies only to the husband's acquisitions during the marriage. Lord Cowan, in his judgment in this case says—“A provision made by a wife of her conquest during the marriage is unprecedented; and so far as any known style of contract of marriage can be relied on, or any reported decision on questions of this kind discloses, there is no instance on record of a wife providing in general terms or specifically ‘conquest’ in its limited sense to the husband and children.”
A wife (as was observed in argument) may acquire considerable sums during the marriage by the exercise of her musical or literary talent, or by carrying on business, but, as the Lord Justice-Clerk remarks, “She cannot in any legitimate sense conquest or acquire anything, because whatever she acquires of moveable property passes to the husband; and if any heritable estate comes to her by succession, that would not be conquest; and if by donation, that would be the very opposite of conquest of the marriage.”
Of course provision might be made respecting a wife's acquisitions during the marriage under the term “conquest” in a marriage-contract, if it was clear that the word was meant to be used in the same technical sense as when applied to a husband's acquisitions. But the absence of any precedent of a deed in which a wife has made provision for her conquest in the same sense in which a husband's conquest is provided for, raises a presumption that when the technical word is found in a clause in a marriage-contract dealing with the wife's property, it is not intended to be used in its strict and technical sense.
The word in the present case is not used substantively, but as a verb, as to which Mr Bell, in section 1975, says: “The word conquest is also sometimes used as a verb, ‘what we shall conquest or acquire;’ or its meaning is qualified by descriptive words, and the extent varies with the expression.” By this I understand that the word conquest, when used as a verb, is more flexible then when used as a substantive.
Being then at liberty to depart from the technical sense of the word, if there is a manifest intention that it was not to be technically applied, the question arises, Whether in the deed itself sufficient grounds are not to be found for the adoption of a different construction?
In an ordinary provision of conquest the husband is the absolute proprietor during his life of everything which comes under that denomination, and may dispose of it during his lifetime for onerous causes, but not gratuitously. Every acquisition made by the wife during the marriage belongs to him, unless his jus mariti is excluded. There is nothing in the smallest degree analogous to this in the marriage-contract of the appellants. The whole of the wife's heritable and moveable estates of every description which she may “conquest or
acquire” are assigned to trustees, and they are empowered, with the consent of the wife alone, to sell any of the heritable estates, and convert them into
Page: 51↓
Such a trust as this is utterly at variance with a provision of conquest. From the nature of the deed in its constitution of the trust, and from the character of its provisions, I am satisfied that the words “conquest” and “acquire” were net used in a strict and technical sense, but were meant to comprehend everything which might fall to the possession of the wife during the marriage. This will include the £1500 acquired under the deed of direction of the 11th July 1855, as well as the moiety of the father's heritable and moveable estate. I therefore differ with the Lord Ordinary, and agree with the opinion of the Judges of the Second Division, and think their interlocutor ought to be affirmed.
By the marriage-contract of her parents, Ralph Compton Nisbet and Mary Cameron, a sum of £3000 had been settled on the children of that marriage, to go to them in such proportions as the father should direct.
The said Ralph Compton Nisbet survived his wife, and died in 1863, leaving issue only two daughters, of whom the appellant, Mary Wilhelmina Nisbet was one.
By a deed of direction, dated in 1855, Ralph Compton Nisbet directed that the trustees who held the £3000 should, after his decease, pay over one-half thereof to his daughter, now Mrs Diggens. This deed was not delivered as a deed, but was kept by him in his repositories. It contained, however, a clause declaring that it should have full force at his death, notwithstanding the want of delivery.
Mr Nisbet left considerable property at his death, in 1863, both heritable and moveable, to which his two daughters became entitled in equal moieties, as heirs-portioners and next of kin. The question for decision is, whether the £1500 so directed to be paid to Mrs Diggens, and her share in the heritable and moveable estate of her father, were duly assigned by her to the trustees appointed by the antenuptial contract entered into on her marriage.
The question turns entirely on the point, whether the property to which she so became entitled passed under the description of heritable and moveable estate which she might conquest or acquire during the subsistence of the marriage. The Court below held that it did; but the appellants dispute the correctness of that decision, on the ground that property to which she succeeded as heir-portioner and next of kin of her father, or to which she became entitled under her father's deed of direction, is not conquest according to the Scotch law.
It cannot be disputed that when, in a marriage contract, the intended husband makes in the ordinary form a provision of conquest in favour of his wife or children, the word “conquest” has a well established definite meaning, which I assume would not include any part of that ta which Mrs Diggens became entitled on her father's death. A provision of conquest seems to have been an ancient mode of making a settlement for the benefit of wife and children, sufficient probably in early times, but ill-suited to the exigencies of the present day. It was founded, as I collect from the opinion of the Lord Justice-Clerk, on the hypothesis that the spouses were bound together in a sort of partnership, to endure during the marriage, and then, at the death of the husband, the result of their gains during the marriage, whether from industry, frugality, or purchase, was to be ascertained. This was analogous to the profit of a commercial partnership, and the result was treated as the “conquest” on which the contract of the husband in favour of his wife and children attached.
But it is impossible to attach to the word “conquest,” as used in this marriage-contract, the same meaning as that which attaches to it in an ordinary provision of conquest by a husband. What is to constitute “conquest,” properly so called, cannot be ascertained till the death of the husband; but here the assignment of what the wife shall “conquest or acquire” operates immediately on the accruing of the title to the property assigned. It is all to be held by trustees during the marriage, on trusts irreconcileable with her retaining, or her husband retaining, any power or control over it. The argument, however, of the appellants was, that though the incident of conquest, properly so called, to which I have referred—I mean its leaving everything under the husband's control until his death—might be inapplicable to the assignment contained to the settlement, yet it would be right to interpret the words, “which she may conquest or acquire,” as embracing only such things as constitute conquests properly so called.
Now, it is admitted on all hands that a provision of conquest by a husband does not extend to or affect any heritable or moveable estate which come to him during the marriage by succession or legacy; and therefore, reasoning by analogy, the appellants contend that the words used in the antenuptial contract ought not to be taken as extending to the share of her father's heritable and moveable estate, to which she succeeded on his death. I cannot agree to this argument. If no technical meaning is to be attributed to the words “conquest or acquire,” no one would hesitate to say that a married daughter, when her father dies and leaves a large property, which descends on her, “acquires” that property during the marriage. She certainly acquires it at some time; and if she does not acquire it during the marriage, when does she acquire it? No authority has been produced to show that any technical meaning has ever been attributed to these words, “conquest or acquire,” except in the case of a provision made by the husband when, from the nature of the contract into which he is entering, the word “acquire” cannot have its ordinary meaning.
Even if it were necessary to adduce arguments to show that the word “acquire” ought to have its ordinary meaning attributed to it, there are cogent arguments on the face of the deed leading to that
Page: 52↓
But what seems to me to show conclusively that it is not to earnings or acquisitions in the nature of “conquest, technically” interpreted, that the deed referred, is the circumstance that the property assigned is to go to trustees, who are to deal with it during the marriage in the mode prescribed by the contract. This is inconsistent with conquest in its technical sense. It was admitted that there is no authority for holding that a provision of conquest had ever been made the subject of an assignment to trustees; and I am persuaded that no such case can or does exist. Such a turns would, in fact, be inconsistent with the nature of conquest. On these grounds, I think that the decision of the Court below was right.
It was argued, however, that different principles may be applicable to the £1500, to which the wife was entitled under her parents' marriage contract and the deed of direction executed by her father. The argument was, that though the precise amount to which she eventually became entitled was not, ascertained till after the death of her. father in 1863, yet she had an absolute indefeasible title to some part of the £3000 secured by the marriage settlement of her parents to their children; and so, it was contended, she could not be said in any sense to have acquired that, sum during the marriage. But this a very subtitle refinement. She had not any part, of the £3000 at the time of the marriage, and it is reasonable to understand her contract as extending to everything not then in her possession, but which should come to her by any means during the marriage. She makes over to the trustees a small sum of bank stock of which she was possessed at the time of the marriage; and the reasonable construction of the language used is, that she meant to deal with all of which she should afterwards become possessed in the same mode in which she dealt with that which she already possessed.
My opinion is, that the interlocutors of the Inner house ought to be affirmed.
Sir Roundell Pamer—Will your Lordships permit me, as your Lordships have said nothing at present about expenses, to recal to your recollection the fact that the Court below thought this a case in which no expenses should be given, and no expenses were, given.
Interlocutor affirmed, and appeal dismissed, with costs.
Agents for Appellant— A. & A Campbell, W.S.
Agents for Respondents— Morton, Whitehead, & Greig, W.S.