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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Smith [1866] ScotLR 1_101_2 (11 January 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0101_2.html Cite as: [1866] SLR 1_101_2, [1866] ScotLR 1_101_2 |
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Page: 101↓
(1) A wife has a title to sue her husband for payment of a provision to her in her marriage contract, although trustees were nominated in the contract at whose instance action and execution should pass. (2) A wife who has deserted her husband may sue him for payment of such provision, although she could not sue him for aliment, that being an equitable claim.
This is an action at the instance of Mrs Isabella Bain or Smith, wife of Mr Adam Smith, writer in Falkirk, and is directed against her husband. The conclusions of the action are for two half-yearly instalments of an annuity of £60, which the pursuer says is due to her under an antenuptial contract of marriage entered into between them on the nth of August 1847, by which the defender settled that yearly sum on the pursuer; and further, that the defender should be decerned and ordained to settle and secure at the sight of the Court, in terms of the contract of marriage, the said free yearly annuity of £60 to and in favour of the pursuer, the same to be secured so as to be paid to her during the subsistence of her marriage with the defender, exclusive of the jus mariti of the defender, courtesy of Scotland, or other title, and also exclusive of liabilities for his acts and deeds and the diligence of his creditors, and thereafter during her viduity, if she shall survive her husband. There is an alternative conclusion that the defender should be ordered to consign £2000, in order that the same be invested at sight of the Court for payment of the annuity. There is an additional conclusion that the defender should pay the pursuer the sum of £1248, 16s. 5d., being the one-fourth part or share of her father's estate, to which the pursuer is entitled, exclusive of the jus mariti of her husband, or that he is bound to make it forthcoming that she may invest it.
After living for some time together the wife left the society of her husband, and they are now living separate. The defender, in respect of such desertion, pleads that he is not bound to pay the annuity. In the marriage contract there was a clause nominating trustees, at whose instance action and execution should pass, and upon this clause the defender pleads that the pursuer had no title to sue. To this the pursuer answered that of the persons named as trustees four are dead, one, if alive, is out of the country, and the others declined to act. The Lord Ordinary (Kinloch) repelled the objection to the pursuer's title to sue, holding that, besides the pursuer's answer, the nomination of trustees in a marriage contract, however convenient in many supposable circumstances, does not deprive the wife of her personal right to sue (with a curator ad litem) for fulfilment of her marriage contract. On the merits his Lordship found that the defender was bound to pay the annuity—the marriage contract containing no conditions warranting a refusal. Whatever was the motive of the parties for entering into such an
Page: 102↓
arrangement it was not an illegal one, and must be enforced as made. As to the last conclusion, the Lord Ordinary has found the defender bound to set aside and invest such sum as shall appear to have been received by him out of the pursuer's one-fourth share of her father's estate, that the pursuer may receive the liferent thereof, in respect of a provision to that effect in the marriage contract. Against that claim the defender pleaded compensation, in respect he had expended large sums on her account. To-day the case was argued and advised.
The Lord Justice-Clerk, in giving judgment, said the question was a new one and important. There was no doubt that the desertion of the wife was an established fact in the case, because, except where there is fault on the part of the husband, a wife living separate from him without a decree of separation is in a state of desertion. In such a case she could not pursue an equitable claim, such as one for aliment. But her claim here was one in law under a deed of contract, and it was no answer to that to say that she had violated her conjugal duties. The husband's objection is that the wife has violated her marriage vows, but not the antenuptial contract, which determines her right to the annuity. The remedy which the husband had was an action of adherence, not to refuse to implement his obligations under the special contract. As to the sum of £1248, the wife's share in her father's estate, it was quite plain that the husband was bound to invest this so as to give precise effect to the terms of the marriage contract.
The other Judges concurred.
An interlocutor was pronounced ordaining the husband to put in a minute stating how he proposed to settle the annuity, and appointing him to consign the £1248 in the Bank of Scotland, subject to the orders of the Court.
Counsel for the Pursuer— Mr Patton and Mr Asher. Agents— Messrs Paterson & Romanes, W.S.
Counsel for the Defender— Mr Fraser and Mr Scott. Agents— Messrs Wotherspoon & Mack, S.S.C.
