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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Currie v Currie [1835] CA 13_290 (22 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0290.html Cite as: [1835] CA 13_290 |
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Page: 290↓
Subject_Legacy—Testament.—
A testatrix who had, by an antenuptial contract, the absoute disposal of £1000, increased by a postnuptial contract to £3500, conveyed that sum of £3500 to trustees, by a mortis causa settlement, to pay £1000 to her daughter, and secure the remaining £2500 for the daughter in liferent, and her children; whom failing, the children of a son, in fee. After the death of the testatrix, her husband revoked the postnuptial contract, whereby the sum falling under her deed of settlement was reduced to £2250 (being the £1000, and the testatrix's half of the £2500, as part of the goods in communion)—held, that the absolute bequest of £1000 to the daughter did not suffer any proportionate diminution by the defalcation of the fund from £3500 to £2250, but was payable to her in full.
The late Mrs Margaret Baldwin or Jardine had, by Claud Currie, her first husband, four children, of whom two predeceased her, the other two being the parties to this action. In 1804 she married her second husband, Peter Jardine, an antenuptial contract having been previously executed, whereby it was stipulated, that, “in regard the said Margaret Baldwin is at present possessed of money and effects to the extent of £1000 Sterling, the said Peter Jardine hereby renounces all jus mariti and right of administration that may be competent to him any manner of way over the said money and effects to the extent foresaid, and consents and agrees that the said Margaret Baldwin shall and may, without his concurrence, uplift, receive, and discharge the same, and use and dispose thereof, in any manner of way she thinks proper, daring the standing of the present intended marriage.”
By an after clause, “The said Margaret Baldwin hereby expressly reserves to herself the Sole use and enjoyment of the said money and effects belonging to her, to the extent foresaid, and to dispose thereupon by deed of settlement or otherwise, in such manner as she thinks proper, and that at any time during the standing of the present intended marriage, without the consent of the said Peter Jardine; and in case of the said Margaret Baldwin predeceasing her said intended husband, she hereby assigns, conveys, and makes over to him the one just and equal half of the said money and effects that may be acquired by her and her husband, during the standing of the present intended marriage; and the remaining half she hereby makes over to the child or children of the present intended marriage, share and share alike; and failing of such child or children, then the said half shall fail and belong to the children of her former marriage, share and share alike.”
In 1809 the spouses executed a postnuptial contract, varying the provisions in the antenuptial contract in a manner unnecessary particularly to be adverted to, and setting forth, that “at our marriage, the said Margaret Baldwin was possessed of money and effects to the amount of about £3500 Sterling, in place of £1000 mentioned in the former contract of marriage entered into between her and me, as was ascertained by a particular inventory and account taken at our leaving the Black Boy Tavern, and commencing business in the Buck's Head Inn.”
In 1816, Mr and Mrs Jardine executed a new postnuptial contract, whereby they conveyed to trustees, for purposes not necessary to be specified, the whole property that might be acquired by them, “excepting from the said general conveyance the sum of £3500 Sterling, of which the said Margaret Baldwin was possessed at the time of entering into the said antenuptial contract, over which the said Peter Jardine renounced his jus mariti and right of administration, and of which sum the sole right of disposal is hereby reserved to the said Margaret Baldwin, as she shall hereafter think proper.”
In 1818, Mrs Jardine, without the knowledge of her husband, executed a trust deed of settlement, whereby, on the narrative of the last-mentioned contract, and that she and her husband had excepted from the conveyance therein “the sum of £3500 Sterling, over which the said Peter Jardine renounced his jus mariti, and right of administration, and of which sum the sole right of disposal is thereby reserved to me, as I should think fit,” she conveyed to trustees this sum of £3500 for purposes thus declared, viz. “The said trustees hereby named shall lend out and secure on good heritable bond, or in the purchase of heritable property, the foresaid sum of £3500 Sterling, and take the rights and securities in their favour so conceived, that the annual produce of the said sum shall belong and be paid to the said Margaret Currie in liferent, during all the days and years of her life, for her liferent use allenarly, and to her children as after-mentioned in fee, excepting to the extent, and in the events after expressed; and failing lawful children of the said Margaret Currie, to and in favour of the lawful children of the said Claud Currie, my son, equally amongst them in fee; declaring that the said Margaret Currie shall be entitled to receive, and the said trustees are hereby authorized and directed to pay to her, if she shall demand the same, any time after the expiration of one year after my decease, the sum of £1000 Sterling, part of the foresaid principal sum hereby vested in the said trustees, to be used and disposed of by her, the said Margaret Currie, as she shall think proper, for which sum of £1000 her receipt shall be a sufficient exoneration, and the remaining sum of £2500 Sterling shall remain subject to her liferent use as aforesaid, and belong in fee as above expressed.” Before executing this settlement, Mrs Jardine had been warned that her husband's renunciation of his interest in £2500, being the excess of the sum of
During the subsistence of the marriage, five heritable properties had been purchased by the spouses with funds arising from the profits of their business, as hotel-keepers in the Buck's Head, Glasgow, the titles to these being taken in two instances to Mrs Jardine and her heirs and assignees, and in the other three to Mr and Mrs Jardine in liferent, and Mrs Jardine's children by her first marriage in fee.
Mrs Jardine died without having had children by Mr Jardine, who, on this event executed a revocation of the two postnuptial contracts, and instituted a reduction of them, and of the trust-deed of 1818, in so far as in violation of his rights. In this action it was found that all these deeds were liable to reduction “in so far as they have the effect of infringing his rights under the original marriage contract;” and he was found entitled to one-half of the whole funds and estate existing at the death of Mrs Jardine, under deduction of debts, and of the £1000 reserved in the antenuptial contract of marriage. The remaining half of the estate fell to be divided between Mrs Jardine's two surviving children, Dr Currie and Miss Currie, subject to the effect of her trust-deed of settlement of 1818. For determining their respective rights, these parties raised mutual actions against each other, the main question in dispute being as to the £3500 conveyed to trustees by that deed of 1818.
Miss Currie contended,
1. That to the extent of the £1000 reserved in the original contract, and of which Mrs Jardine had the absolute disposal, it was clear that, by the trust-deed of 1818, Mrs Jardine had conveyed it as a special subject to her; and,
2. That as to the remaining £2500, it must be held as a bequest out of the one half of the goods in communion, to which Mrs Jardine had right under the original contract, and which must be burdened according to the terms of that bequest.
Dr Currie, on the other hand, maintained that the bequest in the trust-deed was of a special sum, supposed by Mrs Jardine to be at her absolute disposal, and that it could not affect the half of the goods in communion which she did not thereby at all contemplate, and that, as the deed proceeded on the erroneous assumption by Mrs Jardine, that she had this £3500 at her absolute disposal, while she had truly only £1000 as determined by the subsequent revocation and reduction at the instance of her husband, that sum of L.1000 must be appropriated to the purposes of the trust in the proportions in which the larger sum had been appropriated by her—that is to say—that as L.1000 of the L.3500, or two-sevenths of its amount was made payable to Miss Currie, and the remaining five-sevenths appointed to be invested—two-sevenths of the L.1000 now fell to be paid her, and the remaining five-sevenths invested in terms of the trust.
Lord Mackenzie, Ordinary, pronounced the following interlocutor, adding the subjoined note. *
“In respect to the sum of L.1000 libelled, finds, That the same falls to be disposed of under the provisions of the deed of the late Mrs Jardine, dated 2d June, 1818, relating to the sum of £3500 mentioned in that deed: In respect to the sum of £2500 libelled, finds, That the same must be divided into two equal halves; and in respect to one half thereof, being £1250, finds, That the same falls in like manner to be disposed of under the said provisions; but in respect to the other half, being £1250, finds that the same does not fall under the said deed, and that Miss M. B. Currie has no right thereto by virtue thereof, and ordains parties to be further heard on the effect of these findings.”
_________________ Footnote _________________
* “The view in which, after full consideration, the case appears to the Lord Ordinary, is the following: In regard to the remainder, i. e. to the £2500, it is to be considered what was Mrs Jardine's right therein. Previous to any grant from her husband, she had right to this part of the £3500 libelled, as to the rest of the estate of the spouses, by the communio bonorum only, i. e. right to one-half pro indiviso, but still one-half of it, subject to the administration of her husband. But then Mr Jardine (donatione inter virum et uxorem) renounced his jus mariti to the extent of this sum of £2500. The effect of that renunciation was two-fold: 1st, It gave his wife right to his half of it, as well as her own. 2dly, It took away his power of administration of both halves of this portion of the goods in communion. As to her own half of it, the renunciation did not, and could not, originally or properly give her right to that. If she had not held that right before, by the communio bonorum, the renunciation of the husband's right would have vested nothing in her, more than in any body else. In regard to her original half, then, the renunciation did and could only bar the husband's administration. As to the husband's half, it did give her right to what previously was in him. She, then, having in her this right to both halves of this sum, assigned it over mortis causa to her trustees, by the deed 1818. This deed is no legacy of a sum payable out of her estate generally, but a conveyance of a specific subject, which she assigns and transfers to her trustees, surrogating and substituting them in her full right to the same, i. e. her full right to the sum of £3500. She died, and by her death this right vested in her mortis causa assignees. After that, then the husband revoked the renunciation of his jus mariti (which be had power to do) in regard to this sum. His revocation was more extensive; but that is of no moment. He might have revoked this renunciation separately, or left it only standing unrevoked, as he pleased. It had no necessary connexion with any other deed of his. What, then, was the effect of his revocation of it? Nothing as to the administration of the £2500 by the husband, for the marriage was ended, and consequently nothing as to the wife's one-half of this sum, for her right to that did not stand on the renunciation of her husband, farther than as it was thereby secured from the husband's administration. The only effect of the revocation after the wife's death, was to take back the husband's half of this sum of £2500. It could have no greater effect. So far, however, the revocation evicted part of the special subject assigned mortis causa; and as this assignation bore no warrandice, and was manifestly not a legatum rei alienæ scienter legatæ, it must, so far, defeat the assignation; but, quoad ultra, it stands good. The revocation cannot in any way defeat farther.”
This interlocutor was acquiesced in, and thereafter Lord Moncreiff, before whom the cause had now come to depend, pronounced as follows, issuing at the same time the note below: *—“The Lord Ordinary having considered the closed record, and previous proceedings in this case, and heard parties' procurators on the questions remaining undecided and reserved, finds that Miss Margaret Baldwin Currie, pursuer in the one action, and defender in the other, is entitled to payment in full of the sum of £1000, provided to her by the deed of the late Mrs Currie or Jardine, and that her claim to the said sum ought not to suffer any defalcation, either in consequence of the decreet of reduction of the various other deeds referred to in the process, or in respect of the judgment of Lord Mackenzie in the present process: Therefore, decerns for payment of the said sum, in terms of the libel at the instance of the said Miss Margaret Baldwin Currie, and so far assoilzies her from the conclusions of the counter-action against her, and decerns; and appoints the cause to be enrolled, in order that any points remaining to be decided may be disposed of: Finds Miss Currie entitled to her expenses, since the interlocutor of Lord Mackenzie of the 11th July, 1833, against the party or parties for whom appearance was made in the debate, and reserves any question as to the other expenses.”
Dr Currie reclaimed, praying to have Miss Currie's claim restricted to two-sevenths of the sum of £2250, being the amount to which, according to Lord Mackenzie's interlocutor, Mrs Jardine's trust-deed applied, and in support of his plea, that Miss Currie's bequest should suffer a proportionate diminution, in consequence of the diminution of the fund, he specially referred to the case of Arbuthnot, February 13, 1756 (M. 8080).
_________________ Footnote _________________
* “The Lord Ordinary thinks it a very clear case, that the sum of £1000 is appointed to be paid to Miss Currie, in the first place, if she requires it, whatever may happen in regard to the rest of the £3500. It is very probable that Mrs Jardine was aware of the doubt as to the validity of her settlement in regard to the whole of the remaining sums of £2500; and if she was, and had that in her mind, no one can doubt that she meant to give the £1000 absolutely to her daughter, as the thing which she knew she had clearly in her power. But if it should be thought that she had not this in contemplation, the question still is, What is the legal and fair meaning of the whole clause? And the Lord Ordinary is very decidedly of opinion, that it imports express bequest of the £1000 to Miss Currie, in the first instance, and that the obligation to invest the remainder of the assumed sum of £3500 is, in all rational and equitable construction, a postponed legacy, which can only take effect after the other has been provided for. If the contingency of defalcation had been contemplated, the provision could not have stood in the form it does, on any other supposition. If it was not contemplated, still the provision is so conceived as to require the payment of the £1000, as independent of, and precedent to, any investment. It is an express exception from the obligation to invest.”
The Court accordingly adhered.
Solicitors: W. A. G. and R. Ellis, W. S.— David Brown, W.S.—Agents.