Scottish Court of Session Decisions

By antenuptial contract of marriage dated 28th February and 1st, 2nd, 3rd, and 26th March 1898, between Hugh Niven Coulson and Mabel Ellen Taylor, with the special advice and consent of the persons therein mentioned, Mr Coulson's father disponed certain estate to the trustees and for the purposes therein mentioned and Miss Taylor disponed to them for the purposes therein mentioned certain estate specified, and also “all and sundry lands and heritages, goods and sums of money, and generally the whole property and estate, heritable and moveable, now belonging or which shall pertain and belong to her during the subsistence of the marriage” under exception of certain specified sums, and of monies in her bank account, current income, and legacies not exceeding £200. Certain other estate was disponed to the trustees on her behalf by other persons. The value of the estate put into the marriage trust by Mr Coulson's father was about £3816, and the value of the estate put into the marriage trust by and on behalf of Miss Taylor was about £16,939. By the marriage-contract the trustees were appointed tutors and curators to the child or children of the marriage. Mr Coulson and Miss Taylor were married on 12th May 1878.

In February 1898 Mr Coulson, in anticipation of his intended marriage to Miss Taylor applied to the Equitable Life Assurance Society of the United States for a policy for £1000 on his life payable in the manner after—mentioned, and by policy of assurance dated 10th May 1898 for £1000 on the life of Mr Coulson, the said Assurance Society, on receipt of satisfactory proofs of the death of the assured, providing the policy was then in force, agreed to pay to the said Mabel Ellen Taylor if living, if not, then to Mr Coulson's executors, administrators, or assigns, subject to the right of the assured to change the beneficiary, the sum of £1000. Mr Coulson paid the first premium due upon the policy amounting

In January 1899 Mr Coulson applied to the said Life Assurance Society to change the description of the parties to whom the proceeds of the policy were payable by annulling the following part thereof, viz., “subject to the right of the assured to change the beneficiary.” The object of this request was to make the direction to pay to his wife in the event of her surviving him absolute. The Assurance Society agreed to comply with this request, and accordingly they made a docquet bearing date 21st January 1899 on the policy in the following terms:—“In compliance with the written request of the assured duly acknowledged it is hereby declared that the amount due at the death of the assured shall be payable not as originally provided (other conditions and requirements remaining unchanged), but to Mabel Ellen Coulson, wife of the assured, if living, if not then to the assured's executors, administrators, or assigns.”

On 22nd February 1899 and 22nd February 1900 Mrs Coulson paid out of her own separate means, from which her husband's jus mariti and right of administration were excluded by the contract of marriage, two annual premiums of £22 each, but she

Page: 753↓

made these payments because it was more convenient for her than for her husband to provide the money at the time, and not because of any understanding upon her part that the policy was her own. The policy itself was never handed over to Mrs Coulson.

Mr Coulson died on 11th January 1901 domiciled in Scotland, survived by his wife, and by one child, Ellen Stewart Coulson, born 16th March 1899. Mr Coulson left no testamentary deed.

After Mr Coulson's death a question arose as to the sum contained in the policy of insurance, and for the settlement of the point a special case was presented for the opinion and judgment of the Court.

The parties to the special case were, (1) the trustees under the marriage-contract, and (2) Mrs Coulson.

The questions of law were—“1. Is the said sum of £1000 payable to the first parties in terms of the marriage-contract? or (2) Is the said sum payable to the second party absolutely for her own use and behoof? or (3) Is the said sum intestate succession of the said deceased Hugh Niven Coulson?”

By section 2 of the Married Womens Policies of Assurance (Scotland) Act 1880 (43 and 44 Vict. c. 26) it is enacted—“A policy of assurance effected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife or of his children, or of his wife and children, shall, together with all benefit thereof, be deemed a trust for the benefit of his wife for her separate use or for the benefit of his children, or for the benefit of his wife and children, and such policy immediately upon its being so effected shall vest in him and his legal representatives in trust for the purpose or purposes so expressed, or in any trustee nominated in the policy or appointed by separate writing duly intimated to the assurance office, but in trust always as aforesaid, and shall not otherwise be subject to his control, or form part of his estate, or be liable to the diligence of his creditors, or be revocable as a donation, or reducible on any ground of excess or insolvency.” …

Argued for the first parties—The sum contained in the policy fell under the acquirenda clause in the marriage-contract, and was therefore payable to them. Under the Act an indefeasible and irrevocable right was vested in the wife under the policy during the subsistence of the marriage. The wife's interest in the policy having thus vested in her during the marriage, her right under the policy fell under the conveyance to the first parties in the marriage-contract. Alternatively, the sum under the policy was intestate succession of Mr Coulson, and was payable to the first parties to the extent of two-thirds as tutors and curators of his only child.

Argued for the second party—A policy of insurance like the present was not within the communio bonorum, and did not fall within the definition of acquirenda during the subsistence of the marriage— Smith v. Kerr, June 5, 1869, 7 Macph. 863; Thomson's Trustees v. Thomson, July 9, 1879, 6 R. 1227. The right of the wife in the policy was only contingent, and could not be described as money or property pertaining or belonging to her during the marriage. She was therefore entitled to the sum due under the policy for her own absolute use and behoof.

At advising—