Scottish Court of Session Decisions

This was a Special Case submitted by Mrs Emilia Baillie or Grant, widow of the deceased Patrick Grant, Writer to the Signet, her son and two daughters, the only surviving children of the marriage between her and the late Mr Grant, and her marriage-contract trustees.

By the antenuptial contract of marriage entered into by Mr and Mrs Grant, Mr Grant made over to certain trustees two certificates or policies of insurance on his own life for the respective sums of £1000 and £999, 19s., and Mrs Grant also assigned and conveyed to the trustees the sum of £4000 sterling. By the third purpose of the contract of marriage the trustees were directed to lend out or invest the said sum of £4000 in their own names, and to pay the interest or yearly profits to Mrs Emilia Baillie or Grant during her lifetime, exclusive of the jus mariti of her husband; and it was thereby declared that in the event of the death of Mr Grant before Mrs Grant, £3000 of the said sum of £4000 should be paid to Mrs Grant for her own right and use, and subject to her own absolute and uncontrolled disposal, and that the remaining portion of the said sum of £4000, as well as the fee of the sums that might become due on the said policies of insurance, should be paid to the child or children of the marriage after the death of Mrs Grant in such proportions as the spouses might direct by any joint-deed under their hand, and failing thereof, the same should be divided equally among the children, “declaring always that if any child or children of the said marriage shall die before the said sum provided to him, her, or them under these presents, or the exercise of the said power of division, shall be paid or become payable, leaving lawful issue of his, her, or their bodies, the said issue shall have right to the share of such deceasing child or children in the same manner as if such parent had received payment or the same had become payable during the parent's lifetime.”

Mr Grant died in April 1870. He was survived by his widow and three children, who had all reached majority. No deed of apportionment was ever executed. The £3000 provided by the marriage-contract to Mrs Grant was paid to her by the trustees shortly after her husband's death, and the whole fund remaining under trust management consisted of the remaining £1000 and the policies on the life of Mr Grant. The widow and children being anxious to have the trust brought to an end, offered to execute a renunciation of Mrs Grant's liferent interest in the trust-funds and discharges by all the parties interested. The trustees, however, maintained that they were bound to keep up the trust until the arrival of the period fixed in the contract of marriage for the division of the fund. The two following questions were submitted to the Court:—“Whether the parties of the third part are bound now to denude of the trust and to pay over the proceeds of the trust-estate to the parties of the first and second parts, on receiving a renunciation from Mrs Grant of her liferent interest, and a discharge from her and her family of the whole of their intromissions and actings in usual form? or, Whether they are bound to keep up the trust until the arrival of the period fixed in the contract of marriage for the division of the fee of the estate?”

At the debate the counsel for the trustees admitted that the point was decided by the case of Pretty v. Newbigging.

Authorities— Pretty v. Newbigging, March 2, 1854, 16 D. 667; Routledge v. Carruthers, May 19, 1812, F.C.

At advising—