Scottish Court of Session Decisions

The parties to this Special Case were—first, the brother and heir at law of the late Robert Cosens Weir of Bogangreen—and second, the widow and trustees acting under the trust-disposition and settlement of the said Robert Cosens Weir. It was presented under the following circumstances:—

Page: 527↓

By antenuptial contract of marriage, dated 16th June 1865, between the late Robert Cosens Weir of Bogangreen and the said Caroline Louisa Antoinette Irwin, the said Robert Cosens Weir bound himself, his heirs, executors, and representatives whomsoever, to make payment to the said Caroline Louisa Antoinette Irwin, his then promised spouse, in case she should survive him, yearly, and each year during all the days of her life after his decease, of a free liferent annuity of £300; further, he bound and obliged himself and his foresaids to make payment to her, in case she should survive him, and there should be no living child of the intended marriage, and no issue of such child, of an additional free liferent annuity of £100, payable in the same manner and subject to the like condition as the annuity of £300; and it was declared that the said annuities should be paid to the said Caroline Louisa Antoinette Irwin exclusive of the jus mariti of her husband, in case she should enter into a second marriage, and the receipts for the same to be granted by her alone should be valid and sufficient. The contract contained a declaration in the following terms, viz., “and said annuities are hereby declared alimentary, and it shall not be competent for the said Caroline Louisa Antoinette Irwin to sell, assign, or burden the same, and they shall not be affectable by the deeds or attachable for the debts of any husband to whom she may be married.” In security of the said annuities George Cosens Weir disponed by said contract to his said intended wife his lands and estate of Bogangreen, in the parish of Coldingham, in the county of Berwick. This marriage-contract was recorded in the Register of Sasines, &c., for Berwickshire, the 27th February 1868.

By trust-disposition and settlement, dated 12th May 1866, the said Robert Cosens Weir conveyed the said lands and estate of Bogangreen, and the lands of Alemill, as also his whole other estate, heritable and moveable, to the second parties hereto, other than the said Montagu Stevenson, as trustees for the purposes following, viz., first, to pay debts, &c.; second, to make payment to his said wife, in case she should survive him, during all the days of her life after his decease, of both the annuities of £300 and £100 settled upon her by their contract of marriage, and that, even although there should be a living child or children procreated of the marriage, or issue of such child or children, she should have a free liferent annuity of £400, which should be paid to her exclusive of the jus mariti of her husband in case she should enter into a second marriage, and the receipts for the same to be granted by her alone should be valid and sufficient to the receivers thereof. The trust-deed contained a declaration in the following terms, viz., “And said annuity is hereby declared alimentary, and it shall not be competent for my said wife to sell, assign, or burden the same, and it shall not be affectable by the deeds, or attachable for the debts, of any husband to whom she may be married.” The third, fourth, fifth, sixth, and seventh purposes applied only in the case of children of the marriage being in existence; eighth, the trustees were directed, in case all the testator's children should predecease him, or, after surviving him, should predecease his said wife without leaving lawful issue, to pay, assign, and dispone the then free remainder of the moveable estate to his said wife, and her heirs, executors, and successors whomsoever, for their own absolute use and uncontrolled disposal, and to give to her during her life the free rents of the heritable estate; and lastly, the testator directed his trustees, on the death of his said wife and all his children without leaving lawful issue, to pay, assign, and dispone the then free remainder of the trust-estate, heritable and moveable, to his only brother, the said George Weir Cosens, the first party, and his heirs, executors, and successors whomsoever, for their own absolute use and uncontrolled disposal, and, failing him, then to his, the testator's nearest heir absolutely. This trust-disposition and settlement was recorded in the Division of the General Register of Sasines applicable to the county of Berwick, on the 14th October 1869.

Robert Cosens Weir died on 3d September 1867. There was no issue born of the marriage.

His widow entered into a second marriage with Montagu Stevenson, late captain in her Majesty's 30th Regiment of Foot, residing at Fairfield, by Bradford-on-Avon.

The moveable estate was exhausted in paying the debts of the truster, and there was thus no free moveable estate available for payment to Mrs Stevenson under the last purpose of the trust-deed. Since the death of Robert Cosens Weir his widow regularly received payment of the foresaid annuities, amounting together to £400, but the yearly income of the trust-estate is not sufficient to pay the same. There are no free rents available for payment to Mrs Stevenson under the last purpose of the trust-deed. The second parties are under the necessity of borrowing money from time to time on the security of the trust-estate, in order to enable them to pay said annuities. The income and fee of the estate were being rapidly diminished, and the result would be that in the course of a few years the estate would be exhausted and the annuities would cease.

In this state of matters the widow of Robert Cosens Weir (now Mrs Stevenson) and the said George Weir Cosens (the first party) informed the trustees (the second parties) that they had entered into an arrangement for the discharge by Mrs Stevenson of her right to the annuities in future in consideration of receiving from the said George Weir Cosens the sum of £4500.

The said George Weir Cosens required the trustees, the second parties, upon production and delivery of such discharge by Mrs Stevenson, to convey to him the remainder of the trust-estate still in their hands.

The following question of law was submitted for opinion of the Court:—

“Whether the said Mrs C. L. A. Irwin or Stevenson, with concurrence of her present husband, has power to discharge the provisions secured to her by the marriage-contract and trust-disposition and settlement above recited, and to disburden the lands of Bogangreen, &c., thereof; and whether, upon production and delivery of a discharge by her, with concurrence aforesaid, in favour of the trustees, the said trustees are entitled and bound to convey the remainder of the trust-estate to the said George Weir Cosens?”