Scottish Court of Session Decisions

By contract of marriage entered into in April 1857 between Mr William Hope and Miss Margaret Jane Cunninghame Graham, with the special

Page: 400↓

advice and consent of their respective fathers, Mr William Hope and his father bound themselves jointly and severally, and their heirs, executors and successors whomsoever, to make payment to Miss Graham, in the event of her surviving her husband, of an annuity of £400 whilst she remained unmarried. Various other provisions were made by Mr William Hope in behalf of his intended wife. Miss Graham, on her part, made a general conveyance of her whole estate, heritable and moveable, in favour of certain trustees; and her father bound himself to pay to the trustees during his lifetime the sum of £100 yearly, to be applied by them in maintaining a policy on Mr Hope's life for £5000, and that the trustees should receive £5000 at his death. This sum was stated to be his provision for his daughter, and was destined ultimately to her children. By his will he left all his personal estate and effects to his widow, and, by separate deeds, two houses in Moray Place. In December 1858 thereafter a memorandum of arrangement was entered into between Mr William Hope and his mother, as executor to his father, by which, on the narrative of some of the foregoing circumstances, it was stipulated as follows:—

“(1) After payment of all debts and claims against the executry, an annuity of £500 a year to Mrs Hope during her life shall be purchased from the English and Scottish Law Life Insurance Company. The price will be £5000.

“(2) Mrs Hope shall either he effectually discharged of all liability for the contingent annuity payable to Mrs William Hope under her marriage-contract, or sufficient funds or property for securing that annuity shall be set apart and vested in trustees for that purpose.

“(3) Mrs Hope shall retain whatever furniture, plate, wine, books, pictures, and other articles she may desire for her house in Royal Terrace, and shall also retain a sum of £200 to be placed to her credit in bank.

“(4) Mrs Hope will convey to her son the house No. 20 Moray Place, and as soon as the foregoing arrangements are carried out, will pay and make over to him for his own absolute use, but under the express burden of the payment and relief by him of all outstanding obligations or liabilities of the said deceased, the whole remaining funds and property which belonged to his deceased father; but inasmuch as the said deceased gave directions in the year 1854 to pay to his brother William the interest of £980 invested in a debenture of the Caledonian Railway Company, it has been agreed that (the said deceased's brother William having died on 3d October last) the said debenture shall be made over to trustees for behoof of his widow and her children.

“(5) Messrs Hope and Mackay are authorised by Mrs Hope and the said William Hope to get all these arrangements carried into effect as speedily as possible.”

In terms of this arrangement Mrs Hope accordingly executed in May 1859 a disposition of the two houses in Moray Place in favour of her son and his heirs and assignees. On 3d June thereafter Mrs William Hope, his wife, with his consent, on the narrative of her marriage-contract provisions, her father's settlement, and this disposition by her mother, granted a discharge to her mother, as executrix of her father, of all liability for this annuity. And on the same day, on the narrative of the foregoing transactions, Mr William Hope conveyed certain heritable property to the marriage-contract trustees of his wife for various purposes, one of which was the payment of the annuity provided to his wife, if she survived him. This conveyance, the disposition of the houses in Moray Place by Mrs Hope, and the marriage-contract, were duly registered.

In February 1870 Mr William Hope, with his wife's consent, executed a revocation of the trust-disposition granted by him on June 3d 1859. The deed of revocation was ratified by his wife; and the question arose between him and the trustees, whether such revocation could be validly executed.

Pattison and J. Gibson for Mr and Mrs Hope.

Fraser and Mackay for the trustees.

The Court unanimously held that the revocation was invalid. It was purely gratuitous, but was intended to revoke the last of a series of deeds, all of which were highly onerous and closely connected. The security created by the trust-deed was just a surrogatim for the security created by the antenuptial contract; and if the former was destroyed, the latter would fall also. Mrs William Hope would thereby have no security for her annuity; and it was settled law that a woman could not, with her husband's consent, stante matrimonio discharge a security created under her antenuptial contract.

Note.—The Court called attention to the impropriety of one counsel signing a special case for another, as a special case is a joint statement, binding both parties, and preventing the introduction of other matter.