Scottish Court of Session Decisions

The questions in this case arose on the construction of a post-nuptial contract of marriage entered into between the late Mr and Mrs Leighton, by which they “mutually and reciprocally give, grant, assign, and dispone each of them to the other, in case of his or her survivancy, all and sundry lands, heritages, tenements, tacks, adjudications, heritable bonds, and other heritable estate whatsoever, and all and sundry goods, gear, debts, sums of money, and other moveable estate whatsoever, belonging or due, or which shall belong or be due, to them or either of them at the dissolution of their marriage by the death of either of them, with the whole writs, evidents, vouchers, and instructions of the same, (excepting however from this conveyance the wearing apparel of both parties); and they name and appoint the longest liver of them to be sole executor of the first deceaser, with full power to give up inventories, confirm the same, and to do everything that any executor can do by law, but always with and under the conditions and provisions after specified, with and under which they surrogate and substitute the survivor of them, after the death of the first deceaser, in their full right and place of the premises; but declaring always, as it is hereby specially provided and declared, that the conveyance above written is granted for the uses and purposes, and with and under the conditions and provisions underwritten, viz. for payment, in the first place, of the death bed and funeral expenses, and the just and lawful debts of the first deceaser. Secondly, the longest liver of the said John Leighton and Elizabeth Leighton shall, as soon as may be conveniently after the death of the first deceaser, make up an inventory and valuation of the whole estate and effects, heritable and moveable, falling under the conveyance above written, deducting therefrom the whole debts, expenses, and charges of every description falling thereupon, and shall deliver a duplicate of such inventory subscribed by him or her to one or other of the trustees after named, to be kept by him for the use of the nearest in kin or legatees of the first deceaser, and such longest liver of them shall life-rent the whole estate, heritable and moveable, that shall belong or be due to either of the parties, or in communion betwixt them at the death of either of them (excepting always their wearing apparel as aforesaid), and shall have the full and entire administration

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and management thereof during his or her life, with power to sell, use, and dispose thereof for onerous causes, at pleasure, without the interference or control of the legatees or relations of either party during his or her life, but such longest liver shall not have power gratuitously to gift or dispose of the said estate to the prejudice of the legatees or nearest of kin of the first deceaser. Thirdly, After the death of the longest liver of the said parties, the said estate and effects shall devolve and belong to George Ferrier, tenant in Scotstown, Alexander Leighton, tenant in Drumecairn, and James Stewart, tenant in Ballhal, land the acceptor or acceptors, survivors or survivor, of them, in trust, for the uses, ends, and purposes following, and said trustees shall divide the same into two equal shares, after deduction therefrom of the funeral expenses of such longest liver, and of the whole debts and expenses chargeable upon said estate, including the expense of executing the trust hereby created, and one just and equal share thereof shall belong and be paid or conveyed to any person or persons, legatee or legatees, to be named or appointed by or for the purposes to be mentioned in any deed or writing that may be executed by the said John Leighton, or failing his executing such, the same shall be paid or conveyed to his nearest-in-kin, equally share and share alike, whether they be males or females, or the said property be heritable or moveable, and the other just and equal share thereof shall belong and be paid or conveyed to any person or persons, legatee or legatees, to be named or appointed by or for the purposes to be mentioned in any deed or writing that may be executed by said Elizabeth Leighton, or failing her executing such, the same shall be paid ore onveyed to her nearest-in-kin, equally share and share alike.”

The Fifth purpose of the deed was — “In dividing said estate into shares, said trustees shall not include any of the interest, rents, or profits accruing thereon during the life of the longest liver of the said John Leighton and Elizabeth Leighton, nor any estate, property, or effects which may have been acquired by the longest liver of said parties subsequently to the death of the first deceaser of them, but only such effects as are included in the inventory appointed to be made up by the longest liver of them aforesaid. and where the ipsa corpora of the property contained in said inventory shall be still in existence and in the hands of the survivor of the parties at his or her death, then the said trustees shall take possession thereof, and sell, dispose of, or otherwise recover the same, but where the ipsa corpora of such estate or effects are not in the hands of such survivor at his or her death, then the value thereof, as shown by and contained in the foresaid inventory, shall be accounted for by the representatives of such survivor to the said trustees, and they shall recover such values accordingly, and no more, as the true amount and value of such property; but in case the longest liver of the parties shall neglect to make up such inventory and valuation, then the whole property and estate left by him or her after his or her death shall be held to have belonged to the parties at the dissolution of their marriage, and be taken possession of and divided by the said trustees as above directed.”

Mrs Leighton survived her husband and married a second time, her husband being Mr David Craig, writer in Brechin, and they entered into an ante-nuptial contract of marriage, whereby they mutually and reciprocally assigned and disponed each of them to the other, in case of his or her surviving, the whole estate, heritable and moveable, belonging or due, or which should belong or be due, to them or either of them at the dissolution of said intended marriage by the death of either; and they appointed the longest liver of them to be sole executor of the first deceaser. By the said antenuptial contract it was provided, in the third place, that after the death of the longest liver of the spouses the estate thereby conveyed should devolve and belong to certain persons as trustees, of whom the second party of this Special Case was the sole accepting survivor.

After the death of Mr and Mrs Craig this Special Case was brought by—“(1) George Ferrier, sometime tenant in Scotston, now residing in Montrose, as sole surviving trustee under the post-nuptial contract between the late John Leighton, merchant in Brechin, and the late Mrs Elizabeth Cuthill or Leighton, afterwards Craig, dated 15th August 1833; (2) The said George Ferrier, as sole surviving trustee under the ante-nuptial contract of marriage between the late David Craig, writer in Brechin, and the said Mrs Elizabeth Cuthill or Leighton or Craig, dated 27th February 1843; (3) The said George Ferrier John Don, some time agent for the City of Glasgow Bank in Brechin, now residing there, and George Henderson, nurseryman in Brechin, accepting and acting trustees under the trust-disposition and settlement of the said Mrs Elizabeth Cuthill or Leighton or Craig, dated 25th August 1871, and James Craig, solicitor in Brechin; (4) William Angus, merchant in Brechin, general disponee and universal legatory under the disposition and settlement of the late Helen Leighton, merchant in Brechin, dated 18th March 1847; and (5) Robert Leighton, residing in New Rattray, Blairgowrie, and George Davis Leighton, residing in Brechin, the surviving next-of-kin of the said deceased John Leighton as at the death of the said Mrs Elizabeth Cuthill or Leighton or Craig.”

The following questions were submitted for the opinion and judgment of the Court:—“(1) Did the ante-nuptial contract of marriage between Mr and Mrs Craig effectually convey the fee of that one-half or share of the estate and effects falling under the conveyance in the postnuptial contract between Mr and Mrs Leighton, which was destined, in the events therein stated, to the legatees or nearest-in-kin of John Leighton, and exclude the liability of Mrs Craig or her representatives to account to the nearest-in-kin of John Leighton for said half or share?—If this question should be answered in the negative, the opinion and judgment of the Court was further requested upon the following additional queries, viz.:—(2) Is the fourth party entitled to the fee of the share falling to the nearest-in-kin of John Leighton under the said post-nuptial contract? Or (8) Are the fifth parties entitled to the fee of the said share? (4) In accounting to John Leighton's nearest-in-kin for their share of his estate, do all the payments specified in the thirteenth and fourteenth articles hereof, with

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interest thereon, fall to be deducted from their share, or any, and which of them? (5) Is the property which was acquired by Mrs Leighton or Craig subsequently to John Leighton's death, liable to be applied, so far as necessary, towards making up the sum to which John Leighton's nearest-in-kin are entitled under the said postnuptial contract and the said inventory and valuation? (6) Do the items two and three of the heritable estate mentioned in the said inventory and valuation form part of the estate falling under the conveyance in the post-nuptial contract?”

The payments referred to in question Four were certain payments made by Mrs Leighton or Craig to the next-of-kin of John Leighton. Item two of the heritable estate, referred to in question Six, was certain house property, the title to which was to John Leighton and his wife, and the longest liver of them, and to the heirs and assignees whomsoever of the longest liver of them. Item three of the heritable estate, also mentioned in question Six, was a sum secured to Mrs Leighton by the settlement of her father over subjects belonging to her brother, and conveyed by her to her deceased husband in case of his survivance.

Argued for the first party—No unlimited power of disposal was given to Mrs Leighton by the post-nuptial contract; her power was little more than a power to change investments.

Authorities— Ramsay v. Beveridge, March 3,1854, 16 D. 764; Kerr v. Ure, June 28, 1873, 11 Macph. 780.

Argued for the second and third parties—Mrs Craig had a fee and power of disposal, and by her ante-nuptial contract she disposed of the estate. The fifth purpose of the post-nuptial contract was intended to provide for the case of investments. There was no real distinction between the present case and the cases of Lord v. Colvin and Dick v. Gillies. Where the destination was to a party's own heirs, there was only one period at which they could be ascertained, viz., his own death; but when the destination was to the heirs of A, there was the choice of two periods, A's death or the testator's. The word “use,” in the second purpose, meant something more than liferent, for that had been already given in express words. The husband's intention was that his wife should use or spend the money in any way which was for her own advantage and comfort, only she was not to give it away gratuitously, without benefit to herself. The fifth purpose was a qualification and limitation, not of the trust to Mrs Leighton, but of that which would come into operation at her death, viz., that to George Ferrier.

Authorities— Pearson v. Corrie, June 28, 1825, 4 S. 120; Stone's Trs. v. Gray, May 29, 1874, 1 Ret. 953. Lord v. Colvin, March 18, 1848, 23 D. 11; July 15, 1863, 3 Macp. 1083; Dick v. Gillies, July 4, 1828, 6 S. 1065.

Argued for the fourth party—Mrs Leighton was a trustee under the post-nuptial contract. In order to raise up a trust it was not necessary that there should be a distinct conveyance in trust. She held two characters; she was first appointed trustee, and later on was appointed liferentrix, and as trustee she held for her own benefit as liferentrix. On a sound construction of the post-nuptial contract, a trust was created in the surviving spouse, and the trust in favour of Ferrier was a continuation of that trust. The beneficial interest vested a morte testatoris, and in the case of the death of a beneficiary before the surviving spouse, his executor would have a vested right to his succession. Next-of-kin were here the heirs in mobilibus, and there was nothing in the deed to show that those heirs were not to be ascertained as usual at the death of the testator.

Authorities— Mein v. Taylor, Feb. 23, 1830, 4 W. and S. 22; Scott v. Penicuick, June 12, 1855, 17 D. 840; Connell v. Grierson, Feb. 14, 1867, 5 Macph. 379.

Argued for fifth party—Next-of-kin meant next-of-kin as ascertained at the death of the wife.

Authorities— Lord v. Colvin, March 18, 1848, 23 D. 111; July 15, 1865, 3 Macph. 1083; Dick v. Gillies, July 4, 1828, 6 S. 1065.

At advising—