Scottish Court of Session Decisions

The parties to this Special Case were John Cowan, as factor loco tutoris to Miss Isabella Jane Dick, younger daughter of the late Alexander Dick, of Lumloch, of the first part; and the trustees of the said deceased Alexander Dick, of the second part. The facts as stated in the case were as follows:—The said Alexander Dick died at Bridge of Allan upon the 10th day of September 1871, survived by his wife, Mrs Jane Geddes or Dick, who also died at Bridge of Allan upon 21st November 1871. The said Alexander Dick was twice married, and left two daughters, Charlotte Sarah Janet Dick, the sole issue of his first marriage with Mrs Charlotte Slater or Dick, and Isabella Jane Dick, the sole issue of his second marriage with the said Mrs Jane Geddes or Dick. The party of the first part was duly nominated and appointed factor loco tutoris to the said Isabella Jane Dick, who is still in pupillarity, conform to act and decree of the Lords of Council and Session in his favour, dated the 22d day of October 1872. By the contract of marriage between the said Alexander Dick and his first wife, mother of the said Miss Charlotte Sarah Janet Dick, dated 12th April 1855, he made certain provisions in favour of his said first wife, in the event of her surviving him, which, in consequence of her predecease, did not come into operation, but the contract did not contain any provision for children of the marriage, or any discharge of their legal rights. Any money which the said Alexander Dick derived or acquired through his first wife has merged in his general estate. By contract of marriage entered into between the said deceased Alexander Dick and the said also deceased Mrs Jane Geddes or Dick, and to which the trustees of her father, the late Archibald Geddes, Esq., merchant, Leith, were parties, dated the 11th day of July 1865, the said Alexander Dick bound and obliged himself in certain provisions in favour of his said spouse, and also bound and obliged himself, in the event of there being only one child of the said marriage, to make payment of the sum of £1000 to the said child, and that at and against the first term of Whitsunday or Martinmas after his decease, with a fifth part more of penalty in case of failure, and interest of the said sum at the rate of five per cent. per annum, from and after the term of payment during the not payment of the same. The said Alexander Dick further bound and obliged himself to aliment and educate the children of the marriage in a manner suitable to their station until the provisions in their favour therein contained should be paid or become payable, or until they should be otherwise provided for. It was further provided that the provisions contained in the said marriage-contract in favour of the child or children of the said marriage should be in full satisfaction to them of all bairns' part of gear, legitim, portion natural, and executry, and everything else which they could claim by and through the death of the said Alexander Dick. The said Mrs Jane Geddes or Dick, by the said marriage-contract, conveyed the whole estate which should belong to her during the subsistence of the marriage, except her interest under the trust-deed of her brother, the deceased John Geddes, and her interest in the trust-estate of the said deceased Archibald Geddes, to the trustees

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there in named, for, inter alia, the following purposes—viz., (1st) For payment to the said Alexander Dick and Mrs Jane Geddes or Dick of the annual produce of the said property and estate during the subsistence of the said marriage; (2d) For payment of the same to the survivor, if there were a child or children of the marriage, at its dissolution; and at the death of the survivor the trustees were directed to pay and divide the capital of the said property and estate to and among the said child or children, or their issue who were then alive, such issue taking only the shares which their respective parents would have received if they had survived. By the said marriage-contract the trustees of the said deceased Archibald Geddes, in terms of the directions contained in the trust-disposition and settlement and codicils of the said Archibald Geddes, assigned, disponed, and conveyed to the marriage-contract trustees the share of the residue of the said Archibald Geddes' estate provided under his trust-disposition and settlement and codicils to the said Mrs Jane Geddes or Dick, under the declaration that they should hold the same for behoof of the said Mrs Jane Geddes or Dick, to the end that the liferent thereof should be secured to and enjoyed by her during her lifetime, and that the said trustees should hold the fee of the said share of residue for behoof of the lawful children of the said Mrs Jane Geddes or Dick, and declaring that if the said Mrs Jane Geddes or Dick should leave no children of the said marriage, it should be in her power to dispose of said share of residue; and failing issue of the said marriage, and failing the said Mrs Jane Geddes or Dick disposing of her said share of residue by testament, that the said share should be paid to the surviving child of the said deceased Archibald Geddes, and her lawful issue. The marriage-contract trustees, under the said conveyance from the trustees of Archibald Geddes, obtained and held funds amounting to £6755, 7s. 10d., and this sum, with the interest thereof from and after the 21st November 1871, the date of the death of the said Mrs Jane Geddes or Dick, has been received by the party of the first part as factor loco tutoris to the said Isabella Jane Dick. The said Alexander Dick left a trust-disposition and settlement, dated the 27th day of January 1870, and a codicil thereto, dated 7th September 1871, which were registered in the Books of Council and Session the 21st day of September 1871. By the said deed of 27th January 1870 he assigned, disponed, conveyed, and made over to and in favour of the parties hereto of the second part, and of the now deceased William Fleming, writer, Glasgow, and to the acceptor or acceptors, survivors or survivor of them, and to such other person or persons as should be assumed in manner therein mentioned, his whole estate, both heritable and moveable, for the purposes therein mentioned, being inter alia ( Third), for investing the sum of £8000 for behoof of his eldest daughter, the said Charlotte Sarah Janet Dick, in the event of her surviving him, and paying and conveying the same for behoof of his said daughter in liferent, for her liferent alimentary use allenarly, and to and for behoof of her lawful children equally among them, and the survivors or survivor of them, share and share alike, in fee, payable and divisible to and among said children on the youngest of them, or survivor of them, attaining the age of twenty-one years, after the death of their said mother; but it was declared hat, in the event of the said Charlotte Sarah Janet Dick dying without lawful issue, or failing said issue before the period of division, the said principal sum of £8000 should revert to and become a portion of the said Alexander Dick's estate, and the interest or annual produce thereof, as well as the principal sum itself, should be payable to his other lawful children or their issue, and said provision in favour of his said daughter was declared to be in addition to the provisions after mentioned: ( Fourth) For payment to the said Jane Geddes or Dick, his wife, during all the days of her life, of an annuity of £150, and that in addition to the annuity provided in the foresaid marriage-contract entered into between them: ( Fifth) With regard to the residue of the estate of the said Alexander Dick, he directed his said trustees to hold and apply, pay, and convey the same to and for behoof of his whole children, equally among them, in liferent, for their respective liferent alimentary uses allenarly, and to and for behoof of their respective lawful issue, equally among them, and the survivors and survivor of them, share and share alike, in fee, payable and divisable to and among such issue, on the youngest of them, or survivor of them, attaining the age of twenty-one years after the death of their parent respectively; but declaring that in the event of any of his said children dying without leaving lawful issue, then the share of his said estate provided to such deceaser should fall to and devolve upon the survivors of his said children and their issue, in equal shares and proportions, and the same should be held and applied, paid and conveyed, to and for behoof of such surviving children and their issue in the same way and manner, and subject to the same terms and conditions as to liferent and fee provided with regard to the original shares of residue provided to his said children. The accepting trustees and executors entered upon the possession and management of the personal and moveable estate of the said deceased Alexander Dick, gave up an inventory thereof, and were confirmed to the same, conform to testament-testamentar in their favour from the Commissary Court of Lanarkshire, dated 17th October 1871. The amount in the inventory of the said personal estate confirmed by the said executors was £38,072,14s. 6d. In addition to the moveable estate included in the said inventory, the said deceased Alexander Dick possessed the estate of Lumloch, let as a farm at an annual rent of £185, and the minerals let at a fixed rent of £300 per annum. The personal debts due by the said Alexander Dick at the time of his death were of small amount.

The question submitted for the opinion of the Court was—Whether the party of the first part is entitled, on behalf of his ward, the said Isabella Jane Dick, to payment of the sum of £1000, with interest, under the contract of marriage second above mentioned, in addition to the provisions conceived in her favour by her father's trust-disposition and settlement and codicil? The party of the first part maintained that he was entitled to receive payment from the parties of the second part of the sum of £1000 sterling, provided to the child of the marriage by the said Alexander Dick, under the contract of marriage dated 11 July 1865, with interest at the rate of 5 per cent., from the term of Martinmas 1871, but the parties of the second part maintained that the provisions in favour of the said Miss Isabella Jane Dick in her father's said disposition and settlement and codicil must be held to be in satisfaction of the provision in her favour contained

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in the marriage contract, and that consequently the party of the first part was not entitled to payment of the said sum and interest.

Cases cited— Elliot's Trustees, 10 Scot. Law Rep. 610; Kippen, 18 D. 1137, 3 Macph. 203.

At advising—