Scottish Court of Session Decisions

An antenuptial contract of marriage was entered into between Henry Stapleton Edwardes, M.D., and Miss Mary Jane Naish, afterwards Mrs Edwardes, on February 20, 1855. The first part of the marriage-contract set forth the obligations entered into by the husband. In the second part of the deed Miss Naish, on her part, gave to her intended husband a gift of £1000, and further disponed and conveyed to trustees therein named a sum of £4000 provided by her stepfather, and also the whole other estate which she presently possessed, or which she should acquire during the subsistence of the marriage (with the exception of the £1000 given to her intended husband), in trust for the following purposes—First, for payment to herself of the free annual income of the foresaid sum of £4000, and of the other means and estate conveyed for her alimentary use: “ Second, that if the marriage happen to be dissolved by the predecease of the wife leaving a child or children of the marriage, the trustees shall pay the said free interest or annual produce to her said husband during his life, for his

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liferent and alimentary use only, and with this declaration also, that the same shall not be assignable by him nor attachable for his debts or deeds, and the capital of the said sums and estate hereby conveyed shall be paid and made over to the said child or children at the first term after their father's death, and after their attaining majority in the case of sons, and in the case of daughters on their attaining majority or being married, as after mentioned: And if there are no children alive at the dissolution of the marriage by the wife's predecease, or though there should then exist a child or children of the marriage, in case of the death of all of them before the terms of payment of their provisions as aforesaid, the said interest or annual produce shall still be paid to the surviving husband during his life for his liferent and alimentary use as aforesaid, but the whole capital or fee shall be at and subject to the wife's disposal by will or other writing, whether executed according to the law of England or Scotland, and the said trustees, on the death of the surviving husband, shall be bound to convey or pay over the same to the disponees or assignees under any will or other writing which she may execute, and failing her executing any other such will or writing, then to her own nearest heirs and executors whomsoever, but with power to the trustees to convey or pay over the capital or fee of the said estate at any time after the death of the predeceasing wife and the failure of issue on obtaining the consent and discharge of the surviving husband, the liferenter, and the beneficiaries under the wife's will or settlement, or of her heirs and executors failing her executing a will or settlement disposing of the said fee or capital: Third, in the event of the marriage being dissolved by the predecease of the husband, and that a child or children of the said marriage be then existing, the trustees shall pay the said interest or annual produce of the said income and estate, after deducting necessary expenses, to the said Mary Jane Naish during her life for her liferent and alimentary use only; and declaring that in this event also the same shall not be assignable by her or attachable for her debts or deeds, or the debts or deeds of any future husband she may marry; and after her death the trustees shall pay or apply the whole future interest or annual produce thereof to or for behoof of such child or children during their minorities after their mother's death, and the capital of the shares of the said children in the said sum of £4000, and their mother's other means and estate foresaid, shall be payable to them after her death on their respectively reaching majority in the case of sons, or in the case of daughters on their attaining majority or being married, whichever of these events shall first happen: But declaring always, that if such child or children should all die before their mother, or although they should survive her, should they all die before attaining majority, and without leaving issue of their own bodies, then and in that event the said sum of £4000, and other means and estate of the said Mary Jane Naish hereby conveyed, or what may be then remaining thereof, shall still continue to be held by the said trustees for the purpose of paying the free interest or annual produce thereof to the said Mary Jane Naish during her life, but for her liferent and alimentary use only, and exclusive always of the jus mariti or right of administration of any future husband the said Mary Jane Naish may marry as aforesaid, and declaring that the same shall not be assignable by her nor be liable to be attached for her debts or deeds, or for the debts or deeds of any husband she may marry: But declaring, nevertheless, that in the event of the said Mary Jane Naish surviving her said intended husband, and of the failure of issue of the said intended marriage, it shall be in the power of the said Mary Jane Naish to test upon and dispose of by will or other writing the capital or fee of the said sum of £4000 and other estate hereby conveyed by her in any way or manner she may think proper, to take effect after her decease, and the said trustees shall be bound to denude themselves of this trust, and to convey and make over at her death the said estate under their charge to the party or parties in whose favour she may have devised or left the same, and failing her leaving any such will or settlement, then the said trustees shall convey and make over the same to her heirs and executors.”

It was further provided—“That … the foresaid provisions for the children of this marriage shall in no case be payable until the first term of Whitsunday or Martinmas after the death of the longest liver of their father or mother, nor whether before or after that period until they respectively attain the age of twenty-one years complete in the case of sons, or in the case of daughters until their attaining that age or being married, nor shall their provisions become vested interests or be transmissible by them until after the death of the longest liver of their father and mother, and after their respectively attaining majority if sons, or attaining majority or being married if daughters, which provision shall be divisible among the children if more than one, as the parents or survivor of them may by any writing under their hand direct, and failing such direction, equally among them.”

The marriage which followed upon the execution of the above contract subsisted till 10th June 1862, when Mrs Edwardes died survived by her husband and one child—a son—Henry Frederick William Edwardes.

Mrs Edwardes left a will dated 17th April 1860, by which she made over to her husband absolutely all she then possessed or might thereafter possess by any ways or means.

The present action was raised by Dr Edwardes and his son H. F. W. Edwardes in November 1889 against Frederick Hughes and Francis Horwood, the trustees acting under the marriage-contract entered into between Dr and Mrs Edwardes, to have it declared that the pursuers had absolute right to the securities and sums of money representing the sum of £4000 settled by

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Mrs Edwardes in the said contract of marriage, and to have the defenders ordained to transfer and pay the same to them on their joint discharge.

The pursuers averred that the pursuer H. F. W. Edwardes had no child or issue living, and that they were the only persons entitled to demand and receive transfer and payment of the sums sued for.

The pursuers pleaded—“(1) The pursuers being the only persons having a right or interest in the sums sued for, decree ought to be pronounced as concluded for.”

The defenders denied that the pursuers were the only persons interested in the sums sued for, and pleaded—“(1) On a sound construction of the marriage-contract the term of payment has not yet arrived, and the action is premature. (3) The pursuers holding no present vested interest in the trust-estate, the discharge proposed to be granted would be insufficient and ineffectual.”

On 6th June 1890 the Lord Ordinary ( Kincairney) sustained the first and third pleas-in-law for the defenders, assoilzied them from the conclusions of the summons, and decerned.

“ Opinion.—This is an interesting but a special case, and I do not think it is ruled by any of the cases which were referred to.

The action is raised by Dr Edwardes and his only son against the trustees under Dr Edwardes' antenuptial marriage-contract, and it concludes for payment by the marriage-contract trustees of the money, amounting to £4000, settled by Mrs Edwardes by the marriage-contract.

The marriage-contract was executed on 20th February 1855, and the marriage was dissolved by the death of Mrs Edwardes on 10th June 1862, survived by her husband and by a single child, the pursuer Henry Frederick William Edwardes, who is of course major, but who has no children.

The first part of the marriage-contract bears that Dr Edwardes entered into certain obligations, which it is not necessary to examine. The second part of the deed sets forth that Mary Jane Naish, afterwards Mrs Edwardes, gives to her intended husband £1000; and it further bears that her stepfather Frederick Robert Hughes, who is a consenting party to the contract, ‘presents and pays to her in the view of her marriage the sum of £4000, to be at same time put by her in trust as after mentioned.’ Accordingly she, with consent of her stepfather Frederick Robert Hughes, dispones to trustees, inter alia, this sum of £4000.

The provisions of the trust, so far as they bear on the events which have occurred, are these: — The trustees are directed (1) to pay to her the interest of her estate, exclusive of the jus mariti, and protected from the creditors of herself and her husband; (2) the second purpose provides for the event of the wife's predecease. It is provided that if she shall predecease leaving a child of the marriage, the trustees shall pay the interest of her estate to her husband during his life for his alimentary use, and not attachable for his debts; and it is provided that the capital shall be paid to the child or children at the first term after their father's death and on majority, and if there are no children alive at the dissolution of the marriage, ‘or though there should then exist a child or children of the marriage, in case of the death of all of them before the terms of payment of their provisions as aforesaid, the said interest or annual produce shall still be paid to the surviving husband during his life for his liferent and alimentary use as aforesaid,’ but the capital shall be at the wife's disposal by will or writing, and the trustees ‘on the death of the surviving husband shall be bound to pay the same to the disponees or assignees under any will or other writing which she may execute, and failing her executing any other such will or writing, then to her own nearest heirs and executors whomsoever.’

There follows a power to the trustees to pay the capital at any time after the death of the predeceasing wife and the failure of issue, on obtaining the consent and discharge of the surviving husband, the liferenter, and of the beneficiaries under the wife's will, or of her heirs and executors if she shall not leave a will.

The third purpose of the trust provides for the event of the predecease of the husband. The provisions are similar to those in the second purpose, but although it is proper to consider them, still the event to which they relate not having happened, it is not necessary to advert to them further.

The deed confers certain powers to make advances, and proceeds to declare, that with the exception of the power last above given to encroach upon a portion of the capital of their shares, the foresaid provisions for the children of the marriage shall in no case be payable until the first term of Whitsunday or Martinmas after the death of the longest liver of their father or mother, nor whether before or after that period until they respectively attain the age of twenty-one years complete, ‘nor shall these provisions become vested interests or be transmissible by them until after the death of the longest liver of their father and mother, and after their respectively attaining majority.”

These are the main provisions of the marriage-contract so far as bearing on existing circumstances, and it appears to me that there can be no serious doubt (1) that under that deed the only right conferred on Dr Edwardes, the husband, is an alimentary liferent, and that the trustees are directed to hold the funds for that liferent; (2) that no right has vested in the younger pursuer, the son; and (3) that the trustees are absolutely prohibited from paying the estate to the son while the father is alive. In the case of Scott's Trustees v. Broun & Company, May 19, 1882, 9 R. 798, a very similar deed was submitted to the Court for construction, and it was held that there was no vesting in the children till after the death of both father and mother. But in the present case the unambiguous and express declaration of the truster as to vesting seems to foreclose any question on the point.

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Further, I think it cannot be doubted that the ordinary condition si sine liberis decesserit is implied in this deed; that is to say, that it contains an implied institution in favour of the issue of the younger pursuer if he shall die without himself acquiring a vested interest in the estate.

Mrs Edwardes left a will, executed at Alexandria on 17th April 1860, by which she made over to her husband in case of her death ‘all I now possess and all I may hereafter possess by any ways or means, or whatever moneys or other property may be left me by any relatives or friends, or money or moneys, property, personal property, ships or ship, my husband is to have the power of the whole in his hands, so that he may do what he likes with them, and make over them in his will to anyone he wishes.’

This will makes no mention of the settled fund over which Mrs Edwardes had the power to test which has just been mentioned. But it was not, and I think could not be disputed that the will carried the settled funds, although not specially mentioned, if Mrs Edwardes had power to bequeath them— Hyslop v. Maxwell's Trustees, February 11, 1834, 12 8. 413; Grierson v. M'Leod or Miller, July 3, 1862, 14 D. 939.

The marriage-contract is somewhat obscurely expressed on this point, but there seems to be no doubt that it contemplates a will by the wife during the subsistence of the marriage, which might be effectually made although there should be children of the marriage then existing, but which could not of course defeat the rights of children under the marriage-contract.

In these circumstances it has been contended for the pursuers that they have the whole jus exigendi in the funds in question, that if the father shall predecease the son the right will vest in the son, while if the father be the survivor the funds will be immediately payable to him under his wife's will, and that their joint discharge will therefore completely exoner the trustees. They referred to Robertson v. Davidson, November 24, 1846, 9 D. 152; Pretty v. Newbigging, March 2, 1854, 15 D. 667; Grant v. Grant's Trustees, January 4, 1876, 3 R. 280; Taylor v. Gilbert's Trustees, July 12, 1878, 5 R. (H. of L.) 217; Lawson's Trustees v. Dicksons, June 19, 1886, 13 R. 1003.

In reference to the alimentary character of Dr Edwardes' right, the pursuers referred to the proviso at the close of the second purpose of the trust as showing that it was not the truster's intention that this right of liferent should enjoy an absolute protection. It was maintained that the consent of the younger pursuer was equivalent to his death or non-existence, so as to let in the operation of the proviso.

The trustees maintained that they were bound to continue to hold the funds, (1) in respect of the alimentary character of Dr Edwardes' liferent, and they referred to Balderstone v. Fulton, January 23, 1857, 19 D. 293; Smith v. Campbell, May 30, 1873, 11 Macph. 630; White's Trustees, June 1, 1877, 4 R. 786; and Duthie's Trustees, 1878, 5 R. 858; (2) because no right had vested (3) because they were bound to hold for the eventual interest of the possible issue of the younger pursuer.

Had the circumstances in which under the marriage-contract Mrs Edwardes' power to test on the settled funds was to arise occurred—that is to say, had there been no living issue of the marriage—I would have been inclined to hold that Dr Edwardes would have been entitled to demand the funds, and that the trustees could not have resisted that demand on the ground that they were bound to hold in order to protect Dr Edwardes' alimentary liferent. I should have come to that conclusion on account of the wide and absolute terms in which Mrs Edwardes' will is conceived, and on account of the terms of the proviso which has been referred to, and if the provision as to that alimentary liferent had been the trustees' sole ground of defence, I rather think I should have held that it could be overcome.

But I have come to the conclusion that the other defences of the trustees ought to prevail. I think that in all the cases quoted for the pursuers where trustees have been directed or authorised to denude on the joint application of a liferenter and of the person to whom the fee stood destined the right to the fee was held to have vested, and that that has always been held to be essential in such cases. In the case of Latta v. Muirhead, December 23, 1887, 15 R. 254, anticipation of the term of payment of the fee was authorised only because the fee was held to have vested. But that judgment has been overruled in the House of Lords, on the ground, I understand, that it was held that the fee had not vested. Here the fee has certainly not vested in the son, and although the view seems maintainable that a defeasible fee may have vested in the husband, that appears to be very doubtful indeed, and would not in any view bring the present case within the scope of the authorities quoted. The dilemma put by the pursuers from which they concluded that the funds must certainly be payable to one or other of them, seems to overlook the consideration that the son may predecease the father leaving issue, which issue would, I apprehend. take the fund and exclude the husband—Fraser on Husband and Wife, ii. 1379. Suppose that in this case the fee had not been destined to children but to grandchildren, it appears to me that the trustees would be bound to hold so long as the possibility of grandchildren existed. I do not see that a provision to a child with the special declaration that it shall not vest in the circumstances which have happened can make a difference if I am right in thinking that a conditional institution in favour of grandchildren is implied. No means were suggested by which, if the funds were paid to the pursuers, the eventual rights of the possible issue of the younger pursuer would be preserved, and they might be totally destroyed, contrary to what I hold to be the implied provision of the marriage-contract.

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“On the whole, I am compelled to conclude that the pursuers have not established their right to payment, and that the trustees are in the right in their contention that they are entitled and bound to continue the trust.”

The pursuers reclaimed, and argued—The conditio si sine liberis only applied to children and not to grandchildren, and did not apply in the case of marriage-contracts. In the present case it was also excluded by the terms of the clause under consideration. “Children” in clause second could not be held to include the issue of children, especially as clause third contained an express stipulation in favour of such issue. The necessary inference was that the absence of any mention of issue in clause second was clearly meant to exclude them in favour of the persons who might be nominated by the wife under her settlement— Rhind's Trustees v. Leith and Others, December 5, 1866, 5 Macph. 104, per Lord Cowan, 110; Young's Trustees v. Macnab, July 13, 1883, 10 R. 1165. If the conditio did not apply, the pursuers were the only persons who could ever have a right to the fund in question, and one or other of them must eventually take it. In these circumstances their joint discharge would sufficiently exonerate the trustees— Latta v. Muirhead, December 23, 1887, 15 R. 254, and May 12, 1890, 17 R. (H. of L.) 45, per Lord Watson, 48. The ground of the House of Lords' judgment in Muirhead's case was that the pursuers there might have eventually turned out not to be the persons entitled to take in terms of the deed. That was not the case here, as one or other of the pursuers must take the fee. Perhaps the correct view was that the fee was in the father, subject to defeasance in favour of the son. If the pursuers' argument so far was sound, the alimentary liferent given to the elder pursuer was no bar to the trustees' denuding. The deed provided for the discharge of that right in the event of the failure of children. There was accordingly no absolute protection given to the right of liferent, and the consent of the only surviving child might be taken as the equivalent of his death or non-existence. Payment of the larger right of fee would discharge the lesser right of liferent— Duthie's Trustees v. Kinloch, June 5, 1878, 5 R. 858; Jamieson v. Leslie's Trustees, June 19, 1888, 16 R. 807; Pretty v. New-bigging, March 2, 1864, 16 D. 667.

Argued for the defenders and respondents—Neither of the pursuers had a vested right in the fund claimed, and in the absence of such vested right could not demand payment. The pursuers' suggestion that there was a vesting subject to defeasance in the father was not enough— Latta v. Muirhead, supra. The son could neither assign nor renounce his right, as it was distinctly declared not to be transmissible during his father's lifetime. Further, neither of the pursuers might ever take a vested right in the fund, as there was an implied gift to the issue of children. The conditio si sine liberis was not excluded in the case of marriage-contracts— Robertson v. Houston, May 28, 1858, 20 D. 989; Arthur & Seymour v. Lang, June 30, 1870, 8 Macph. 928. Nor was it excluded by the terms of the deed. The word “children” in the clause dealing with the event of the wife's predecease should be read as including grandchildren. The reference in the clause dealing with the event of the wife's survivance to the failure of the issue of children showed that in the view of the contracting parties such issue had been already called by implication in the provision to children. If “children” included grandchildren in that clause, why not in the clause dealing with the event of the husband's survivance? The very fact that the issue of children were called in the one event suggested that they were meant to be called in the other. A further valid objection to the claim of the pursuers was that the trustees were bound to hold the settled fund, as long as there was a child of the marriage in existence, for payment of the alimentary liferent to the elder pursuer, and that he could not validly discharge his right to that liferent— White's Trustees v. Whyte, June 1, 1877, 4 R. 786.

At advising—