Scottish Court of Session Decisions

This Special Case was presented by Mr Alexander Grant, member of the Institute of Civil Engineers, London, and of the Punjaub, Upper India, and the trustees under the marriage-contract of the said Mr Grant and Dora Scott Lorrain or Grant, his wife. The facts of the case were as follows:—On 1st August 1868 Mr Grant and Miss Lorrain, afterwards his wife, entered into a contract of marriage, by which Miss Lorrain on her part disponed to trustees therein named her whole means and estate, heritable and moveable, then belonging to her, or to which she might acquire right during the subsistence of the marriage, either under the trust-disposition and settlement of her grandfather and grandmother, or the contract of marriage between her father and mother, or the last will and testament of her father, with the exception of the money coming to her from a certain estate of her late mother. The purposes of the trust were, inter alia, (1) to pay the annual produce of the trust-estate to the said Miss Lorrain, excluding the jus mariti of her husband; (2) in event of Miss Lorrain's death, to pay the annual produce of the estate to her husband; and (3) in event of both the spouses dying without children, to pay the whole trust-funds to the heirs, executors, and assignees of the said Miss Lorrain.

The marriage took place on the 4th August 1868, and Mr and Mrs Grant shortly afterwards proceeded to India. While at Alexandria, en route for India, Mr and Mrs Grant executed a mutual disposition and settlement on the 26th September 1868. This disposition and settlement proceeded upon the narrative of the ante-nuptial contract of marriage, bearing to be in supplement thereof and without prejudice thereto; and thereafter each of the spouses disponed to the other in case of survivance in liferent allenarly, and to the child or children of the marriage, and to the issue of such as might predecease, equally among them per stirpes, whom failing, to his (or her) own heirs, executors, or assignees whomsoever in fee, “all and sundry my heritable and moveable estate, of whatever nature or denomination the same may be, which shall belong and be addebted to me at the time of my decease, with the whole writs and evidents, vouchers, and securities thereof;” and each nominated the other sold executor in case of survivance.

Mr Grant died in India on 27th January 1871, without leaving issue. In virtue of the conveyance by Mr Grant in the said marriage-contract, the trustees (the parties of the second part in this case) became possessed of funds to the amount of £2300. Mr Grant, the party of the first part, called upon the parties of the second part to make over to him, as executor-nominate of his said wife under the said mutual disposition and settlement, the whole of the said funds, and any other funds which might come to them through or as in right of Mrs Grant.

Page: 246↓

The questions submitted to the Court were:—

1. “(1) Whether the parties of the second part are bound now to denude of the whole funds of which, under the said ante-nuptial contract of marriage, they have become, or may hereafter become, possessed, coming through Mrs Grant, in favour of the party of the first part, as executor of his deceased wife, nominated by the said mutual disposition and settlement, upon his producing a confirmation in usual form, and tendering a discharge for the said funds;

   Or,

2. (2) Whether, notwithstanding the execution of the said mutual disposition and settlement, nominating Mr Grant executor to his wife, and disposing of her whole estate, and the failure of children of the marriage, the parties of the second part are entitled and bound to retain and administer the said funds.”

At advising—