Scottish Court of Session Decisions

Subject_1 JUS QUÆSITUM TERTIO.
Subject_2 SECT. I

Stipulations in favour of third parties. - Order to pay money to third parties. - Effect to the third party, of voidance of the right by which he had been favoured.

Thomas Tait
v.
Thomas and Margaret Pollocks

Date: 20 July 1738
Case No. No 9.

A provision in a contract of marriage to the wife's children of a former marriage, was found not to import a jus quæsitum tertio but only a destination of succession, alterable at pleasure by the husband and wife.

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In the contract of marriage entered into betwixt Christian Morison and John Tait, he provided her “in and to the hail insight and houshold-plenishing, and other moveable goods and gear, belonging to him, with power to her to use and possess the same during all the days of her lifetime, in case she survive, and remain unmarried.” The contract further declares, “That, after her decease, it is to be divided in the following manner, viz. two thirds thereof to Thomas and Margaret Pollock's children, procreated betwixt Christian Morison and Hugh Pollock, her second husband; and failing of them, or either of them, by decease, the deceaser's third to accresce and belong to the survivor; which failing, by both their deceases, to the said John Tait and Christian Morison, spouses, their nearest heirs and assignees whatsoever; and the other third of the said moveables, goods, and gear, to pertain to the said John Tait, his assignees, or to which of his children he should think fit to dispone the same before his decease,' &c. And, by another clause, the liferent use of the houshold furniture is reserved to the longest liver of them two, with full power to them to meddle, intromit with, possess, use, and dispose thereof, at pleasure.' Thereafter the said John Tait disponed to the said Christian Morison, her executors and assignees, all houshold-plenishing, goods, gear, and effects, that should happen to pertain to him the time of his decease, with this quality or provision, That in case Thomas Tait, his second, son, survived his said spouse, the one half of the plenishing should, after the decease of his spouse, accresce and belong to him, or the value thereof, in his option.”

John Tait died first, whereupon Christian Morison confirmed the general disposition; and, after her decease, Thomas Tait brought a process, upon the above disposition, against Thomas and Margaret Pollock, for the half of the houshold-plenishing.

For the defenders, it was pleaded, That, from the clauses above recited, it is plain, that two-thirds of the houshold plenishing are declared absolutely to belong to them nominatim; in so much, that the portion of the deceasing is ordained to accresce to the survivor; and, failing of him, only to John Tait and Christian Morison, their heirs and assignees; from which it is plain, John Tait did not intend to retain a power to alter, with respect to this provision in their favour; consequently, a jus quæsitum was thereby acquired to the defenders, which could not be taken from them by any gratuitous deed of John Tait's; more especially, as marriage-contract's are solemn deeds, and the articles therein mentioned are presumed to be agreed upon for onerous causes. It is true, that, in many contracts of marriage, the husband and wife are understood to be fiars, when the liferent is only provided to them, and the fee to the children nascituri. But the present case is quite different, as the defenders are nominatim put in the fee of the subject, by the settlement in the contract; neither can the words, “with full power to them to meddle, intromit with, possess, use, and dispose thereof at their pleasure,” vary the argument, as that cause can never be pleaded so high as to give the husband a power to alter gratuitously, thereby to overturn the whole tenor of the contract; more especially as, from the words subsequent thereto, viz. ‘which liferent-provision above-mentioned,’ &c. it is plain, the power of disposal is solely applicable to the liferent competent to the husband and wife, that clause being intended only to convey to the liferenters such a faculty, power, and use, over these goods, as was consistent with their liferent-right.

Answered for the pursuer; The contract contained not only the ordinary provisions in marriage-settlements, but, further, clauses which were fitter for a testament, in so far as the husband thereby nominates those whom he intended for his successors in his moveables. It is true, the nomination is not made in words commonly used in provisions of succession; instead of instituting heirs or executors, the terms in this deed are, “after the dissolution of the marriage, by both our deceases, shall be divided,” &c. But, it is thought, it would be wresting what appears to have been the meaning of the parties to a strange degree, if these words were interpreted as constituting an unalterable right in the defenders to two-thirds of the pursuer's father's moveables. In short, the meaning of the clause is, That, upon ceasing of the liferent-right of the moveables, constitute in favours of the wife, in case of her survivance, the defenders should succeed to two-thirds thereof, and the pursuer to the other third, in case the said moveables should not be disposed of; so that it is plain, this was only a destination of succession, which is further evident from the words, “reserving to the parties power to dispose of the subjects at their pleasure.” Neither can there be any doubt, but that, notwithstanding this declaration of the husband's intention, he could have sold or gifted the moveables, as that would have been no more than altering a simple destination. Besides, if it had been intended to have stripped the husband of the property, and to make him only a naked liferenter, some words would have been found importing that intention, which no where occur in the contract.

The Lords found, That the provision in the contract of marriage between John Tait and Christian Morison, providing two thirds of their household plenishing in the events, and with the reserved powers therein mentioned, in favours of Thomas and Margaret Pollocks, children of the said Christian Morison, imports only a destination of succession; and that the same was alterable by the said John Tait, with consent of the said Christian Morison, at pleasure; and found the same accordingly altered by the disposition by the said John Tait, in favours of his said spouse, and accepted by her, whereby the half of said household plenishing is, in the event therein mentioned, granted to Thomas Tait, the pursuer; and therefore sustained process at his instance for the half.

C. Home, No 98. p. 155.