Scottish Court of Session Decisions

Mr Alfred Sandilands was married in 1868 to his wife Mrs Annie Matilda Johnson or Sandilands. By their antenuptial marriage-contract he bound and obliged himself, and his heirs, executors, and successors, to make payment to the trustees under it, within six months after his decease or bankruptcy (if he should become bankrupt) of the sum of £5000 sterling, the free annual produce of which they were directed to pay to Mrs Sandilands during all the days of her life as an alimentary provision to her, so as to be for her sole and separate use, and after her death they were to hold and apply it in trust for the child or children of the then intended marriage. He further renounced his jus mariti and right of administration in regard to the whole estate and effects then belonging or which should afterwards belong to his wife, which were to remain separate estate in her person, or in the persons of trustees for her, to hold the same, if not exceeding at any time £500, for her sole and separate use, and if exceeding that amount, for the ends, uses, and purposes declared in the contract with reference to the sum of £5000 to be immediately referred to.

Mr Johnson, Mrs Sandiland's father, was a party to this contract, and he was taken bound as follows:—“For which causes, and on the other part, and as a further provision for the said intended spouses and the children of said marriage the said Edward Johnson binds and obliges himself, his heirs, executors, and successors, at or immediately after the solemnisation of the said marriage, to pay to the said trustees the sum of £5000 sterling, with interest thereof at the rate of £5 per centum per annum from the time the same becomes due till paid; declaring that the said trustees and their foresaids shall hold and apply the said sum of £5000 for the ends, uses, and purposes following, videlicet—In the first place, the said trustees shall pay the annual interest and produce of the said sum to the said Annie Matilda Johnson during all the days of her life on her own receipt alone, and for her sole and separate use, in manner hereinbefore declared concerning the first mentioned sum of £5000, and after her decease, to the said Alfred Sandilands during all the days of his life: In the second place, the said trustees shall pay the said principal sum, after the decease of the longest liver of the said intended spouses, to the children of said marriage, and to the lawful issue of such of them as may decease leaving such issue, and born within such period as aforesaid” (that is, during the lifetime of the spouses, or the survivor of them, or within twenty-one years from the death of such survivor), “in such proportions, with such restrictions, on such terms, and payable at such periods as the said spouses jointly, or the survivor of them, may appoint by any writing under the hand of them, or of such survivor; and failing such appointment, and so far as no such appointment shall extend, to and among all such of the said children, or such one child, as being sons or a son shall attain the age of 21 years, or being daughters or a daughter shall attain that age or marry, and if more than one, in equal shares, and with power to the said Annie Matilda Johnson, failing a child or children of said marriage, and their issue as aforesaid, to destinate and dispose of the fee of the said principal sum of £5000 after her decease in such manner as she may, and whether covert or sole, think proper.”

Mr Johnson further undertook as follows:—(Cond. 5) “And the said Edward Johnson further engages and binds and obliges himself that in case he shall, whether by gift in his lifetime, or by will or testamentary deed at his death, make any further provision for his said daughter or her issue, the same shall be settled upon similar trusts to those above expressed with reference to the said sum of £5000 to be settled by him as aforesaid, with the exception that such further provision for her children and their issue may be extended to the issue of his said daughter by any future marriage (but so, nevertheless, that the portion to be appropriated to the issue of the present marriage shall not be less in proportion to the number of children of each marriage than the share appropriated to the issue of any future marriage), and that the distribution thereof among the issue of his said daughter by the present marriage (in default of, and subject to any appointment by, the said spouses, or the survivor of them, of the share which shall be appropriated to the issue of the present marriage), and her issue by any future marriage, shall be such as he may direct and appoint; and also with the exception that failing children of the said intended marriage and their issue, before attaining a vested interest in the sum of £5000 before provided, that then and in that case the principal sum constituting such further provision as above mentioned shall revert to and form part of the residuary estate of the said Edward Johnson, or shall be otherwise disposed of as he may direct or appoint.”

Mr Johnson died in 1879, leaving a trust-disposition and settlement dated in 1871, and codicils thereto dated respectively in 1876 and 1878, whereby he left his whole heritable and moveable estate to trustees for the purposes therein mentioned. By this disposition—after narrating that he had already made and might increase

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certain advances by way of absolute gift to one or more of his sons for the purpose of establishing them in life, and that it was his wish to effect an equal distribution of his means and estate among all his children,—Mr Johnson bequeathed to each of his sons and daughters who might survive him such a sum of money, free of legacy duty, as with the advances previously made to them respectively, and computing provisions of £5000 which he made for each of his daughters in their marriage-contracts as of the nature of advances, should equalise them all. The residue of the estate was to be held by the trustees till the youngest of the testator's children should attain the age of 21, and then to be divided among them equally. Mr Johnson was survived by four children, viz., two sons, Mrs Sandilands, and another daughter, all of whom at the date of this action had reached the age of 21.

The disposition further provided—“Providing and declaring, as it is hereby provided and declared, that the equalising legacies and shares of residue which, in terms of the provisions before written, shall devolve upon my said daughters Annie Matilda Johnson or Sandilands and Emily Harriet Johnson (afterwards Mrs Ross), shall be held in trust by my said trustees for behoof of my said daughters respectively in liferent during all the days of her life, for her liferent use allenarly, and for her lawful children who shall attain the age of 21 years, in such shares and proportions and under such conditions as she and her husband jointly, or the survivor of them solely, may direct and appoint by any writing under their, her, or his hand, to take effect after her death; and failing thereof, equally among them, whom failing, for heirs and assigns whomsoever in fee.”

Mr Sandilands raised a declarator against Mr Johnson's testamentary trustees, to have it declared that “the said deceased Edward Johnson having by his trust-disposition and deed of settlement, dated 7th June 1871, made a further provision for his said daughter, the pursuer's wife and her issue, whereby he bequeathed to her an equalising legacy along with her sister and the defenders her two brothers of so much money as would, with the advances previously made to them respectively, equalise them all, and also a fourth part of the residue of his whole estate, he was bound, in virtue of the obligation undertaken by him in the foresaid contract of marriage, to settle the said provision, upon the trusts before specified, in favour of the pursuer and his wife and the children of the said Annie Matilda Johnson or Sandilands and their issue as aforesaid, and that the defenders, as his trustees, are bound, notwithstanding the terms of the said trust-disposition and settlement, to hold the foresaid equalising legacy and share of residue upon the said trusts, and to conform themselves thereto in administering the estate under their charge: Or otherwise, the said equalising legacy and fourth part of residue ought and should be settled, at the sight of our said Lords, upon the several trusts expressed in the said antenuptial contract of marriage.”

The pursuer averred—“The provision or declaration last above quoted has the effect of settling the equalising bequest to the pursuer's wife and her share of residue upon trusts different from those expressed in the foresaid antenuptial contract of marriage with reference to the sum of £5000 therein settled by the late Mr Johnson, and is therefore a violation of one of the obligations undertaken by Mr Johnson in the said contract, on the faith of which the pursuer became a party to it. In particular, it does not provide for the pursuer enjoying, in the event of his surviving his wife, a liferent of the income arising from the said equalising bequest and share of residue, as was done in regard to the said sum of £5000, which income amounts annually to £1600 or thereabouts, and it limits the fee to the children of Mrs Sandilands who shall attain the age of twenty-one, and their issue, so excluding children who may die before attaining that age, and their issue, if any.”

He pleaded—“(1) The obligations undertaken by the deceased Edward Johnson in the antenuptial contract of marriage libelled on having been binding upon him, and he having died without implementing the same, they are binding upon the defenders as his trustees. (2) The said Edward Johnson having, by his trust-disposition and settlement libelled on, made an additional provision for his daughter and the children of her marriage, the pursuer is entitled to decree of declarator as concluded for, or to have the said provision settled upon the trustees under the marriage-contract, and upon the several trusts therein expressed.”

The defenders pleaded—“(4) The late Mr Johnson having had full power, notwithstanding the terms of the said marriage-contract, to make such further provision for his said daughter and her issue, and in such terms as he might think fit, the defenders are entitled to absolvitor. (5) The late Mr Johnson not having been bound by the terms of the said marriagecontract to settle any future provisions he might make in favour of Mrs Sandilands and her issue in the special manner therein expressed, et separatim the present defenders having come under no such obligation, they are entitled to absolvitor.”

A tutor ad litem was subsequently appointed to Mr and Mrs Sandiland's children, and sisted as a party to the action.

The pursuer argued—Mr Johnson having made a further provision by his will for Mrs Sandilands, was bound to make it in the particular manner specified, and his trustees were now bound to give effect to that obligation.

Authorities— Thurburn's Trustees v. Maclaine and Others, Nov. 30, 1864, 3 Macph. 134; Douglas’ Trustees v. Kay's Trustees and Others, Dec. 2, 1879, 7 R. 295; Maude, & c. v. Wright's Trustees, Jan. 23, 1878, 5 R. 570.

The defenders argued—Mr Johnson was admittedly not bound to make any further provision for his daughter at all. This put him at once in the position of a donor, and he was thus free to make his gift in any form he liked. This distinguished the present from previous cases. The undertaking in the marriage-contract was not one enforceable at law, and was therefore no obligation at all. On the wording of the clause itself, the “similar trusts” might be fairly read as trusts “for his said daughter or her issue,” excluding pursuer. The testator's intention in his will was perfectly clear, and should be given effect to.