Scottish Court of Session Decisions

Mrs Montgomery Beatrice Campbell or Campbell, daughter of the late Patrick Campbell of Belmont, Stranraer, and Daniel William Campbell, merchant in Sydney, were married at Colombo, Ceylon, on and after 22nd February 1886. At the date of the marriage the parties were of Scotch domicile.

By antenuptial contract of marriage dated 22nd February 1886 the said Daniel William Campbell, on the one part, assigned and transferred to the trustees therein mentioned, and for the purposes therein mentioned, certain policies of assurance with profits and bonuses therein; and, on the other part Mrs Montgomery Beatrice Campbell assigned, conveyed, transferred, and made over to the same trustees certain shares in the National Safe Deposit Company, Limited, and also assigned, conveyed, transferred, and made over to the said trustees any real or personal property which she, the said Montgomery Beatrice Campbell, or the said Daniel William Campbell

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in her right, shall at any time or times become possessed of or entitled to (in the nature of capital but not in the nature of income) which shall at one time amount to or be equal in value to One hundred (£100) sterling, other than jewels, trinkets, ornaments, plate, linen, china, books, or pictures” in trust to invest the funds coming into their hands, and to pay the income thereof to the said Mrs Campbell, or permit her to receive the same for her separate use during her life, but not in any mode of anticipation, free from the debts, control, or engagements of her husband, and after Mrs Campbell's decease to pay the income to Mr Campbell should be survive, and to hold the funds for the children of the marriage in fee, with a clause of return to Mrs Campbell should there be no issue of the marriage. The trustees accepted office. The trust was administered in Scotland and held Scotch investments. There was issue of the marriage.

Miss Helen Maude Campbell of 12 Belgrave Square, Rathmines, Dublin, sister of Mrs Daniel William Campbell, died on 25th November 1898, leaving a last will and testament dated 22nd August 1898. Miss Campbell thereby appointed certain persons to be her executors and trustees. By her said last will and testament Miss Campbell directed—“(7) As regards the other moiety representing the ultimate residue of my estate and effects, and the nett proceeds thereof, my trustees shall hold same upon trust to pay same away in sums not exceeding £95 at any one time at intervals of one month between each payment, to my sister Montgomerie Beatrice Campbell for her sole and separate use, with a view to such sums being treated as sums coming at one and the same time of under £100 in value, and as not being sums which can in any way be looked upon as subject to the trusts of my said sister's marriage-settlement, my wish, desire, and intention being that all sums coming or to come to her under this my will shall be treated as sums to which my said sister is or may become absolutely entitled in her own right and free from any settlement trust; or if my said sister predecease me or die before all sums due to her in manner aforesaid under this my will have been paid over to her, then and in that case I empower and authorise my trustees to deal with any unpaid sums in any manner they may deem most for the benefit of all or any of the children of my said sister Montgomerie Beatrice Campbell who may then be living, in equal or unequal shares and proportions, as my said trustees may deem right and reasonable, and failing children to take under this conditional bequest, I desire and direct that any sums not dealt with or paid away by my trustees for the benefit of my said sister Montgomerie Beatrice Campbell or for the benefit of her children shall go to my brother Colin if then living, or to his widow if he have predeceased, and such widow be then living, or if both be dead, to my said brother Colin's next-of-kin living at the date when my said sister Montgomerie Beatrice and her children's interest in the said moiety shall lapse by their deaths prior to the whole of the said moiety having been paid away or otherwise expended for their benefit.” The moiety of Miss Campbell's estate for disposal under the above-narrated provision amounted to £500 or thereby.

Questions having arisen with regard to the payment of this bequest in Miss Camphell's will, this special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) Mrs Montgomerie Beatrice Campbell or Campbell with consent of her husband, and her husband for his interest; (2) the marriage-contract trustees; and (3) Miss Helen Maude Campbell's testamentary trustees.

The first parties maintained that in terms of Miss Campbell's will, Mrs Campbell was entitled to receive payment of the sums thereby bequeathed to her for her own absolute disposal. The second parties, on the other hand, contended that these sums fell to be paid to them as part of the trust-estate under the contract of marriage.

The questions of law for the opinion and judgment of the Court were as follows:—“Is Mrs Campbell entitled to have a moiety of the residue of Miss Campbell's estate, amounting as aforesaid to £500 or thereby, paid or conveyed to her absolutely in instalments, as provided in Miss Campbell's will, for her own use and behoof, and free of any claim therefor on the part of the second parties? or Are the second parties entitled to demand that the said moiety of the residue of Miss Campbell's estate shall be paid or conveyed to them to hold and administer under the terms of the said contract of marriage.”

Argued for the first and third parties—Mrs Campbell was only to get £95 at any one time. She might never receive more than one instalment. In the event of her death, before all the instalments were paid, there was a destination-over in terms of which the instalments still remaining unpaid were to go to her children, or failing children to other persons mentioned in the will. The testator had not merely expressed her intention that the bequest should not fall under the trust, which might have been insufficient, but had made the bequest in such a form that it did not do so. This case was accordingly distinguished from Simson's Trustees v. Brown, March 11, 1890, 17 R. 581, and the first question should be answered in the affirmative.

Argued for the second parties—Practically Mrs Campbell was to get £500 under her sister's will, and the provision for payment by instalments was a mere evasion. This case was ruled by Simson's Trustees v. Brown, cit., and the lady was bound to pay over the bequest to her marriage-contract trustees.