Scottish Court of Session Decisions

By antenuptial contract of marriage dated in 1841, between Joseph Mitchell, civil engineer, Inverness, and Miss Christian Dunsmure, Joseph Mitchell bound himself to make payment to his intended wife of inter alia a free yearly annuity of £150; and with the view of securing the said annuity he further bound himself to make payment to the trustees nominated and appointed in the marriage-contract, of the sum of £3000 at the first term of Whitsunday or Martinmas which should happen after his death; the trustees being directed to pay over the annual interest of the same to Mrs Mitchell if then alive, in satisfaction pro tanto of the annuity before mentioned; and being further directed to hold the fee or capital of the said sum of £3000 for behoof of the issue of the marriage, and pay it over to them or their descendants at the first term of Whitsunday or Martinmas that should happen after the death of the survivor of the spouses, in such shares as might be appointed by Mr Mitchell, whom failing by Mrs Mitchell, or failing any appointment, then equally among the issue or their descendants.

It was likewise stipulated that the provisions therein should be in full satisfaction to the issue of the marriage of all claim for bairns' part of gear, legitim, portion natural, and executry, and in short, of everything they could demand through the decease of their father or mother.

For which causes, and for the other part, James Dunsmure, the father of Mrs Mitchell, bound himself, and his heirs and executors, to make payment of the sum of £2000 to the marriage-contract trustees, and further, so soon after the death of the survivor of himself and of his wife as the same could be realised, to make payment to the marriage-contract trustees of such additional share of his funds and property as with the said sum of £2000 should have the effect of placing Mrs Mitchell on an equal footing with his other daughters, and afford to each of them £1000 sterling more from his succession than each of his sons, but always upon the trusts set forth in the said marriage-contract. These provisions, it was declared, were accepted by Mrs Mitchell in full of everything she could claim through the demise of her father or mother, with certain exceptions specified in the deed. Mrs Mitchell assigned to the said trustees all estate, heritable and moveable, to which she might succeed during the subsistence of her marriage with Mr Mitchell.

The contract further contained the special declaration that the whole sums of money and property to be received by the trustees under the obligations therein undertaken by James Dunsmure or in respect of the conveyance by Mrs Mitchell, were to be held, inter alia, for the following purposes:— First, That the trustees might pay the free annual proceeds of the said whole property to Mr Mitchell during his life, and after his death to Mrs Mitchell during her life, independently of the annuity of £150 sterling. And Second, That the trustees should hold the capital of the whole property for behoof of the children of the marriage alive at the death of the survivor of Mr and Mrs Mitchell, or the lawful issue of such children, or of any predeceasing child or children, to be paid in the case of sons at majority, and of daughters at majority or marriage, but not before the death of the survivor of the spouses. The payments to children were to be made in such proportions as Mr Mitchell, whom failing Mrs Mitchell, should appoint by any writing under his or her hand, at any time during his or her life; and failing such appointment, the trustees were directed to divide the said trust property equally among the children of the marriage, the lawful issue of a predeceasing child being entitled to his or her parent's share.

Mrs Mitchell survived her father, but predeceased her husband intestate, and without having exercised any power of appointment competent to her under the said marriage-

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contract. Mr Mitchell died on 26th November 1883, leaving a son, James Robert Mitford Mitchell, who was then married, and two daughters also married, Christina Grace Mitchell or Bonhote, and Susan Mitchell or Mitford. These children were the whole issue born of the marriage, and to these children Mr Mitchell left property of the value of £100,000, exclusive of the money which had belonged to his wife, and which was held by the trustees under the marriage-contract.

Mr Mitchell left a trust-settlement, dated 18th December 1881, by which he conveyed his whole means and estate to trustees for certain purposes. By the fifth purpose he directed his trustees to realise his estate, to convert the same into money, and thereupon to divide it into three equal parts, to pay to his son James Robert Mitford Mitchell one-third of said parts, including as a portion of said third a sum of £10,000 provided to be paid by the truster to his (the son's) marriage-contract trustees. He likewise directed his trustees to pay a third part to the marriage contract trustees of his daughter Christian Grace and Captain John Bonhote, including therein a sum of £10,000, similarly provided to them in their marriage-contract. The trust-deed contained a further special direction by Mr Mitchell to his trustees to pay the income of her third to Mrs Bonhote, exclusive of the jus mariti and right of administration of her husband, and to pay the principal or capital to their children in such portions and on such conditions as she, whom failing her husband, might by a writing under his or her hand direct, and failing such direction, equally among them, share and share alike. The remaining one-third was to be paid to the marriage-contract trustees of his other daughter Mrs Mitford.

The sixth purpose of the trust-deed contained the following clause: — “And in virtue of the powers given to me by marriage-contract to apportion among the children of the marriage between me and my said late wife, the means and estate derived through my said wife, and therein conveyed to trustees, I do declare and direct that the same shall be divided into three equal parts, which shall be conveyed or paid to my said children in the same proportions and under the same terms and declarations as are mentioned in article fifth hereof with reference to the residue or remainder of my own estate.”

In these circumstances the parties of the first part, Mr and Mrs Bonhote, maintained that they were entitled to receive payment from the parties of the second part of the sum of £1000, being the share of the £3000 now falling to Mrs Bonhote, as one of the three children of the marriage, between Joseph Mitchell and Miss Christian Dunsmure, as provided in Mr and Mrs Mitchell's marriage-contract. For they contended that under its provisions Joseph Mitchell was entitled to apportion the payment of the £3000 amongst the children of the marriage, but that he was not entitled to direct that payment of the apportioned shares should be made to trustees or otherwise than to the several children of the marriage direct.

The parties of the first part further maintained that the clause in Joseph Mitchell's trust-deed dealing with the moneys coming through his wife, did not amount to a direction that these moneys shall be conveyed to the trustees under the marriage-contract between the parties of the first part; and, separatim, that such a direction was ultra vires of Joseph Mitchell, and that they were entitled to payment, without burden or qualification, of one-third of the trust-moneys, either in virtue of the apportionment contained in the trust-deed and settlement, or failing the apportionment being effectual, then in right of Mrs Bonhote, as one of the three children of the marriage

The marriage-contract trustees maintained the negative of the proposition.

The questions of law were—“(1) Whether the parties of the first part are entitled to receive instant payment from the parties of the second part of £1000, being the one-third part falling to the said Christian Grace Mitchell or Bonhote of the sum of £3000, undertaken by the said Joseph Mitchell in his said contract of marriage to be paid by him to the children of his marriage at the first term of Whitsunday or Martinmas that should happen after the death of the survivor of himself and his wife? (2) Whether the parties of the first part are entitled to receive instant payment from the parties of the third part of the one-third falling to the said Christian Grace Mitchell or Bonhote of the moneys derived through the said Christian Dunsmure or Mitchell under the said contract of marriage? (3) In the event of the first question being answered in the affirmative, whether Mrs Bonhote is put to her election between the said provisions and the provisions in her favour under her father's settlement? And (4) In the event of the second question being answered in the affirmative, whether Mrs Bonhote is put to her election between the said provisions and the provisions in her father's settlement?”

Authorities cited at the debate— M'Donald v. M'Donald, November 1, 1876, 4 R. 45 ( per Lord Ordinary, p. 52); Douglas v. Douglas June 27, 1862, 24 D. 1191; Carver v. Bowles, 2 Russel & Mylne, 304. See also Lennock's Trs., October 16, 1880, 8 R. 14.

At advising—