BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Low and Others [1877] ScotLR 15_111 (20 November 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0111.html Cite as: [1877] SLR 15_111, [1877] ScotLR 15_111 |
||
[New search] [Contents list] [Printable PDF version] [Help]
Page: 111↓
Three years after marriage a husband had executed and delivered a trust-deed for behoof of his wife and children, if any should be born of the marriage. Four years thereafter, when there were no children, the truster and his wife desired to terminate the trust, and have the proceeds realised— held that the trustees were not so entitled to pay the funds over to him on his and his wife's joint requisition although there was no issue of the marriage, and that the same rule applied as if the deed had been antenuptial.
Question ( per Lord Ormidale) whether the decision would have been the same in a case where there was no likelihood of children of the marriage.
Captain Low executed a trust-deed on 12th February 1875, by which he conveyed to himself, his wife, William Mitchell, S.S.G., and Charles Baxter, W.S., a sum of £400, and four insurance policies affecting his own life, in trust for the purposes therein stated. These purposes were the administration of the estate during the truster's life, and the distribution of it, in certain events, after his death among his wife and children, if he should have any. Captain Low delivered this trust-deed to Messrs Mitchell & Baxter, who, on behalf of themselves and the other trustees, and as agents for the trust, duly intimated the assignation of the insurance policies to the insurance companies, and invested the sum of £400 in certain securities specified in the deed. Mitchell & Baxter were agents of the trust, and held the securities in their hands, which were transferable by delivery. They paid the premiums of the insurance policies out of the interest of the £400.
The truster was born on 10th May 1845, and Mrs Low on 8th August 1849. They were married on 7th June 1873. Both thereafter being anxious to terminate the trust, desired the trustees to realise the securities and to pay the proceeds thereof and convey the policies to Captain Low. But Messrs Mitchell & Baxter, two of the trustees, were not satisfied that the trustees were legally entitled to accede to the request.
This Special Case was therefore presented, in which Captain and Mrs Low were the parties of the first part, and Messrs Mitchell & Baxter, as trustees, the parties of the second part. There had been no children of the marriage when the case was before the Court. The question submitted was—“Whether the trustees were entitled or bound to denude in favour of Mr Low upon the joint requisition of Mr and Mrs Low, and on receiving from them a full discharge of all their trust-actings and intromissions?”
Authorities cited— Murison v. Dick, February 10, 1854, 16 D. 529; Anderson v. Buchanan, June 3, 1837, 15 S. 1073; Fletcher Menzies, March 5, 1875, 2 R. 507; Smitten v. Tod, December 12, 1849, 2 D. 226; Thornhill v. Macpherson, January 20, 1841, 3 D. 394.
At advising—
Now, this deed was executed three years after the marriage, and it purports to be one for behoof of the truster's wife and children. Apparently it is a trust substantially of a mortis causa character, but with the peculiarity of being delivered during the truster's lifetime. A postnuptial contract it is not, but it is a postnuptial provision for a wife and children in all respects of a reasonable character, and therefore I regard it as onerous. The question then comes to be, Whether Mr Low can revoke this deed with the consent of one of the parties in whose interest it was executed? No doubt at present there are not any children born of the marriage, still Mrs Low is only one of the parties to the deed, even supposing she were able herself to give an efficient consent to the revocation. The husband and wife in a case such as the present cannot by combining together frustrate the jus quæsitum of children, whether born or unborn. There is not any authority exactly bearing on the question of unborn children, but the principle is clearly recognised.
On the whole, the case appears to be a clear one, and although it is quite true that in most cases such questions arise under an antenuptial contract of marriage, yet I do not see that any difference in principle can be made out where the deed is postnuptial. I am accordingly for answering the question proposed in the negative.
Page: 112↓
It was conceded (indeed upon the authorities it could scarcely have been denied) that an antenuptial deed could not in these circumstances have been revoked, and I think that all the considerations which weigh with the Court in refusing to allow a wife to defeat her own interests, weigh equally in the case of postnuptial and antenuptial provisions.
The Court therefore answered the question in the negative.
Counsel for First Parties— A. Gibson. Agents— Mitchell & Baxter, W.S.
Counsel for Second Parties— Taylor Innes.
