Scottish Court of Session Decisions

By antenuptial marriage-contract entered into in 1828 between the late James Anstruther, W.S., and his wife Marian Anstruther, Mr Anstruther bound himself to lay out the sum of £4000 at the sight of trustees, and to take the right “to himself and his promised spouse, and the survivor, in conjunct fee and liferent, for her the said Marian Anstruther's liferent use only, and to the child or children, one or more, of the said intended marriage, and the issue of the bodies of such child or children, whom failing, to the said James Anstruther's own heirs and assignees whomsoever in fee.” It was declared that in the event of there being more than one child of the marriage, Mr Anstruther should have power “at any time of his life, and even on deathbed, to divide and proportion as he should think proper the above written provisions in their favour; and in case of his death without making such division, the said Marian Anstruther, if she should survive him, should have the same power while she continued unmarried; and, failing of any such division, the said provisions should belong to and be divided among the children equally, share and share alike.” It was also provided that until the said provisions made in favour of the children should be paid, or become payable to them, the said James Anstruther bound and obliged himself to aliment and educate them in a manner suitable to their stations. And the said provisions were declared to be in full satisfaction of all bairn's part of gear, legitim, portion natural, executry, and everything else that they could ask or claim by and through the decease of the said James Anstruther, except what he might think fit to bestow of his goodwill only.

On the other hand, the said Marian Anstruther by the marriage-contract “assigns, dispones, and makes over to and in favour of the said James Anstruther and herself, and the survivor, in conjunct fee and liferent, and to the child or children, one or more, of the said intended marriage, whom failing to the said Marian Anstruther's own nearest heirs and assignees in fee, all and sundry goods, gear, debts, and sums of money, as well heritable as moveable, that were then belonging or resting owing to her, or that should pertain and be owing to her during the subsistence of the said marriage.” It was declared, with reference to the provisions by Marian Anstruther, that in case there should be more than one child of the intended marriage “it shall be lawful to, and in the power of the said James Anstruther and Marian Anstruther, jointly during their joint lives, and to the survivor of them at any time of their lives, or even on deathbed, to divide and proportion the same among the said children as they shall think proper; and in case of their deaths without any such division, the same shall pertain and belong to them (the children) equally, share and share alike.” It was also provided that if any child should die before the sum provided to him or her should be paid or become payable, leaving issue, such issue should have right to the same in the same manner as if their parent had received payment, or the same had become payable to him or her.

Mr and Mrs James Anstruther had three children, all daughters, Maria, married to Mr Smith Cuninghame in 1847; Annie Catherine, married to Mr Mercer in 1861, and Lucy Sarah.

At the date of Mrs Anstruther's marriage she was possessed of £8000, and subsequently succeeded to about £50,000.

By Mr and Mrs Smith Cuninghame's antenuptial contract, to which Mr and Mrs Anstruther were parties, the said James Anstruther and Marian Anstruther bound themselves to pay to trustees the sum of £5000 for payment of the interest to the spouses during their joint lives, and to the survivor of them, and after their death for payment of the principal to their children. The marriage-contract contains the following clause:—“And which said sum of £5000 is hereby declared to be, and the said Maria Anstruther hereby accepts of the same in full satisfaction of all legitim, portion natural, or bairn's part of gear, and of all claims whatsoever which she, the said Maria Anstruther, has in any manner of way, by or through the death of her said father or mother, or by the contract of marriage entered into between her said father and mother, dated 24th and 26th March 1828, and as the share or division hereby allotted to her of her said father and mother's property settled by said contract, all which claims are hereby settled accordingly, saving always and reserving to the said Maria Anstruther the goodwill of her said father and mother as accords.”

Mrs Anstruther died in 1859. The second daughter of Mr and Mrs Anstruther, Annie Catherine, was married to Mr Mercer in 1861. Her marriage-contract, to which her father was a party (her mother being dead), contained a similar provision of £5000, and a similar clause of discharge.

In 1866 Mr Anstruther, on the occasion of his entering into a second marriage with Miss Anderson, executed a trust-disposition and settlement, in which he directed payment of £20,000 to his youngest daughter Lucy Sarah at the time of his death. It was declared that the said provision should be held and taken by her in full satisfaction of all claims she might have for bairns' part of gear, legitim, portion natural, or in any other manner of way by and through his death, or through the marriage-contract between him and the now deceased Marian Anstruther; and in token of the said Lucy Sarah Anstruther accepting of the foresaid provisions in full of all such claims, she subscribed the said trust-disposition and settlement. The deed further provided the sum of £30,000 for behoof of his second wife in liferent, and the children of the marriage in fee, whom failing his own nearest heirs and assignees. The residue

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was destined to his wife, whom failing to his daughter Lucy. The deed expressly declared that in the event of any property whatsoever devolving on his own nearest heirs by the failure of the said Annabella Agnes Anderson either with or without children, the same should belong to his daughter Lucy and her heirs and assignees, whom he expressly nominated his heir, to the exclusion of Mrs Cuninghame and Mrs Mercer or their heirs or assignees, and that in no case whatever should they have any claim upon his means and estate, unless specially bequeathed to them.

Mr Anstruther died in 1867.

Mrs Smith Cuninghame and Mrs Mercer and their husbands brought separate actions against Mr Anstruther's trustees, and against Mrs Anstruther and Miss Lucy Anstruther. The conclusions of the summons in the two actions were the same—to have the trustees ordained to separate the funds of Mr Anstruther from those of his first wife, in order to have the latter divided equally among the children in terms of the marriage-contract; to have it declared that there never had been any valid apportionment, either of the £4000 provided by Mr Anstruther, or of Mrs Anstruther's estate, and that the pursuer was entitled to one-third of each of these funds, under deduction of the £5000 settled in her marriage-contract, and to have the pursuer's marriage-contract and Mr Anstruther's trust-deed reduced so far as they might be held to exclude the pursuer's claims.

The averments made by Mrs Smith Cunninghame in support of the reductive conclusions of her summons were, that at the date of her marriage she was only eighteen years of age, entirely ignorant of her legal rights, and relied on her father to protect her interests; that Mr Anstruther was under essential error as to his legal position, that he believed that he had the full and unlimited control of his wife's estate; while, in point of fact, he had only the power to apportion and divide the fee of the said estate among his children, in terms of the provisions of his marriage-contract; that he impressed this belief on his daughter, and that she was accordingly induced to sign the marriage-contract.

Mrs Mercer's averments were the same mutatis mutandis. After some procedure, which will be found, ante, vol. vi. p. 446, the First Division, on the 18th March 1869 (the Lord President absent, and Lord Deas dissenting) pronounced an interlocutor in both actions, finding inter alia, that the fee of the sum of £4000 provided by Mr Anstruther was vested in him, subject to a right of liferent by his wife in the event of her surviving him, and that the children had a right of succession which could not be gratuitously defeated; and, similarly, that the fee of Mrs Anstruther's estate was vested in her, subject to a liferent by her husband, in the event of his surviving her, and that the children had in regard to that estate a right of succession which could not be gratuitously defeated; and allowing the pursuer a proof of the averments in regard to the circumstances in which her marriage-contract was signed.

The proof was accordingly taken in Mrs Smith Cuninghame's case, and the case sent back to the debate roll. In consequence of a difference of opinion on the bench, the case was again heard before the First Division with three Judges of the Second Division.

The Dean of Faculty, Watson, and Shand, for the pursuers.—There never was any valid exercise of the powers of apportionment under the marriage-contract of James and Marian Anstruther. The provisions and declaration in the pursuers' marriage-contract could not be held to be such exercise, on several grounds. First, there was no separation of the estates of Mr and Mrs Anstruther. It was not stated out of which Mrs Smith Cuninghame's provision was to come, or whether it was to come from both, and in what proportions. Secondly, it was ultra vires to give one of the objects of the power a liferent only. Thirdly, there was no exhaustive apportionment. Taking the fund at its lowest estimate, there were several thousand pounds not distributed among the objects of the power. On that account the whole apportionment must fall, and the rule of equal division come in. Moreover, where such a power is vested as a trust, the Court will look very narrowly into the mode in which it is said to be exercised, to see that no benefit for himself has been obtained by the holder of the power. He cannot be allowed to exercise the trust in such a way as to transfer either to himself or to third parties a portion of the funds, the whole of which he was bound to divide among the members of a specified class. Such proceeding would be a legal fraud on the power, though the party may have acted bona fide.

Further, the discharge by Mrs Smith Cuninghame is not to be held a discharge of claims of succession, but only of legal claims which might form the subject of an action. It is to be noted that she does not discharge her claim for executry, though, even if she had done so, the renunciation would only operate in favour of the other children, and not of strangers. In any view of the case, as exactly similar renunciations were executed by her two sisters, the balance of Mrs Anstruther's estate must be held as carried by the destination in her marriage-contract, or otherwise as intestate succession to her. The trustees of Mr Anstruther have no assignation or other title to this balance.

The pursuers are entitled to have their marriage-contract reduced so far as it is adverse to their claims. The proof shows that Mr Anstruther considered himself the dominus of his wife's estate. This is the view consistently maintained by his trustees in this record. He was clearly of opinion that he could dispose of the funds settled by his marriage-contract as he pleased, and that any provisions he gave to his daughter were entirely within his own control. This opinion he impressed through Mrs Anstruther on his daughter the pursuer. A guardian cannot be allowed to benefit himself or his estate at the expense of his ward, by an error into which he fell himself and led his ward.

Lord Advocate, Solicitor-General, and Balfour, for the defenders,—The reduction is based on essential error, and on that alone, and the error is not one of fact, but of the meaning of a clause in a marriage-contract. Considering the matter the parties were transacting, the error was by no means a material one, if there was error at all. Was it an essential error for Mr James Anstruther to believe and represent that he and Mrs Anstruther, or one or other of them, had a full power of disposal of the funds of which their daughter was to get a part? It was no matter whether it was the father or mother who had the power, as the discharge is given to both parents. Would Mrs Smith Cuninghame have acted differently if she had known the exact state

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of her rights? The theory of the pursuers would cut down almost any marriage-contract in which the daughter accepts a provision in lieu of legitim. According to them she could get a reduction of the contract on the ground that she was unaware of the law, that supposing her father to leave moveable estate she would be entitled to a share of it.

Even supposing the pursuer's marriage-contract not good as a discharge, it subsists as a valid declaration by Mr and Mrs Anstruther that Mrs Smith Cuninghame's share was to be £5000, and no more. It was a valid apportionment as far as she was concerned. There was no necessity for specifying from which fund the £5000 was to come. The two funds were administered as one, and the sum was paid at once. There is nothing in our law to make it incumbent on the donee of a power of apportionment to dispose of the whole fund per expressum. Suppose two persons, and two only, interested in the fund, a share given to one with a declaration that he or she is to get no more, necessarily defines the share of the other beneficiary. He must take the balance, whether that is expressed or not. So if there be three objects of the power, and the shares of two of them declared, that of the third is declared also—it must be the balance. If the two elder daughters in this case had received each more than one third, and nothing had been said as to the share of the youngest daughter, the pursuers' contention necessarily leads to the result that, as the whole apportionment must be set aside, and the rule of equal division applied, the youngest daughter is entitled to call upon her sisters to refund what they have received in excess of their third.

The reservation of “goodwill” has nothing to do with the power. It refers to Mr Anstruther's own estate, with which he could deal as he pleased. The donee of a power of apportionment may exercise it when he chooses, but having once exercised it in the case of one of the objects of the power, by delivery of the deed of apportionment, it is irrevocable as far as that object. The only persons interested in the balance of the fund are the other objects. In any view, the deed, if not irrevocable, was at all events unrevoked in this instance. If Mr Anstruther had not married again, but had died after declaring the shares of his two elder daughters to be £5000 each, could the claim of the pursuer be sustained? In that case his youngest daughter Lucy would come upon her father's executor for the balance of her mother's estate, and if she chose to accept somewhat less than her right, the pursuer and Mrs Mercer could have no claim on that account. Mr Anstruther's trust-deed may have been a bad deed as regards Lucy, she might possibly have challenged it, but the pursuer, whose right is already ascertained, has no title or interest to do so. Lucy's is the only claim that now emerges under the first Mrs Anstruther's marriage-contract, and with her consent to take less than her legal rights the other parties have nothing to do.

The case was advised on the 19th July 1870.

The Court were unanimously of opinion that the pursuer had failed to establish sufficient grounds to support a reduction of her marriage-contract.

The question next arose, standing the discharge, what effect must be given to it in connection with the other circumstances of the case? On this there was much difference of opinion on the bench. The majority of the Court (the Lord President, and Lords Cowan, Deas and Benholme) considered that all claims on the part of the pursuer under them marriage-contract of her parents were effectually excluded by her discharge.

The proof in Mrs Mercer's case was delayed in consequence of various circumstances arising from her residence in the Mauritius. The result of the proof was to show that at the time of Mrs Mercer's marriage, Mr Anstruther, if he did not believe that he had the uncontrolled disposal of his wife's estate, at least was under the impression that he possessed the fee of the same, as well as of the £4000 provided by himself, subject only to a right of succession on the part of the children, and that he communicated this view to Mrs Mercer, who signed the discharge in the belief that her father could do what he pleased with both funds.

The Dean of Faculty and Shand for Mr and Mrs Mercer.

The Lord Advocate and Balfour for the defenders.

The argument for the pursuers mainly turned on the difference in the legal rights of parties produced by Mrs Anstruther's death. The defence was similar to that maintained in the former case.

The Court ( diss. Lord Deas) were of opinion that the pursuer had succeeded in showing that the discharge had been granted and taken under essential error.

At advising—