Scottish Court of Session Decisions

By antenuptial marriage-contract entered into between Donald Campbell and Ann Fraser, dated and recorded 7th January and 18th April 1882, it was provided that in contemplation of the marriage the said Donald Campbell “hereby gives, assigns, and dispones to the said Ann Fraser, if she shall survive him, the whole household furniture and plenishing, including silver plate, china, books, and wines that shall belong to him at the time of his death, wherever the same may be situated; and further, the said Donald Campbell hereby assigns and dispones to the said Ann Fraser, in case she shall survive him, the liferent use and enjoyment of the cottage in which he at present resides, called Lorne Cottage, with full power to her to uplift and receive the rents payable from any portion thereof, during all the days and years of her life, or to retain the same in her own possession; and it is hereby declared that as the cottage was built upon a piece of ground belonging to me, on which houses had already been erected, and no allocation of the ground has taken place, it is hereby declared that one-half of the garden ground at the back shall belong to and be liferented by the said Ann Fraser, along with Lorne Cottage; and further, the said Donald Campbell hereby binds and obliges himself, his heirs, executors, and successors whomsoever, without the necessity of discussing them in their order, to content and pay to the said Ann Fraser, in the event of her surviving him, for and towards her aliment, a free liferent annuity of £15 sterling, and that in equal portions, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas that shall happen after the death of me the said Donald Campbell, and the next term's payment at the first term of Whitsunday or Martinmas thereafter, and so forth half-yearly, termly, and continually thereafter, and which annuity of £15 a-year before provided to the said Ann Fraser shall be payable and upliftable by her out of and from the rents of the shop and bakehouse situated in the property belonging to me in Main Street, Callander; and the said Donald Campbell hereby further gives to the said Ann Fraser full power and liberty by mortis causa deed to test upon and divide and apportion among my lawful children, whether by my first or this intended marriage, and my friends, in such shares as she may think proper, my whole means and estate in the event of my death without having left any settlement regulating the disposal thereof, and to that end I hereby appoint the said Ann Fraser to be my executrix, with power to give up inventories of my estate, and all other powers competent to an executrix; and I hereby leave and bequeath my whole means and estate to her as executrix foresaid, and which provisions above written, conceived in favour of the said Ann Fraser, she hereby accepts in full satisfaction of all terce of lands, legal share of moveables, and every other thing that she, jure relictæ or otherwise, could ask, claim, or demand from the said Donald Campbell, or his heirs, executors, and representatives, by and through his death, if she shall survive him; and the said Donald Campbell hereby for ever renounces and discharges his jus mariti and right of administration over any estate presently belonging or that shall hereafter belong to the said Ann Fraser: And both parties consent to the registration hereof for preservation and execution,” &c.

There was no conveyance of property by the wife to her husband.

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The marriage took place in January, and Campbell died on 1st April 1882. There were no children born of the marriage, and Campbell left no will. By a former marriage he had one son, Donald Campbell, and two daughters, Mrs Katie Campbell or Stott, and Mrs Margaret Campbell or M'Beth.

This was an action at the instance of the widow, Mrs Ann Fraser or Campbell, as an individual and also as executrix of her husband under the antenuptial contract of marriage before referred to, against Donald Campbell, the heir-at-law, Mrs Stott, and the children of Mrs M'Beth, who was then deceased, in which the pursuer sought to have it found and declared—“( First), that by antenuptial contract of marriage entered into between the said deceased Donald Campbell and the pursuer, dated and recorded as aforesaid, the said deceased Donald Campbell gave to the pursuer full power and liberty by mortis causa deed to test upon and divide and apportion among his lawful children, whether by his first marriage or by the marriage between him and the pursuer, and his friends, in such shares as the pursuer might think proper, his whole means and estate in the event of his death without leaving any settlement regulating the disposal thereof; (second),that the said deceased Donald Campbell died on or about 1st day of April 1882 without leaving any such settlement, survived by the pursuer; (third), that upon the death of the said deceased Donald Campbell, the pursuer became entitled to be duly and validly infeft in trust, in terms of the said contract of marriage, in” the heritable subjects in Callander belonging to her late husband; and further, that it be found and declared “that the defender the said Donald Campbell has no right or title, whether of property or possession, in or to the subjects and others above described; and the defender the said Donald Campbell ought and should be decerned and ordained by decree foresaid immediately to cede to the pursuer possession of the said subjects and others, and to flit and remove himself, his family, servants, cottars, and dependents, and goods and gear, furth and from the same, or any part thereof, in order that the pursuer may enter into and possess and test upon, divide, and apportion the same, all in terms of the said antenuptial marriage-contract.”

The deceased Donald Campbell left no moveables except the furniture and plenishings, which his widow received under the marriage-contract.

The heritable subjects were estimated by the pursuer to be of the value of £1200, and were burdened with a bond for £250.

Defences were lodged for Donald Campbell, who stated—“For many years prior to 1875 the defender's father, the said deceased Donald Campbell, carried on the business of a baker, and resided in the said tenement in Main Street, Callander. For at least sixteen years prior to 1875, and until he was twenty-seven years of age, the defender, who was the only son of the said deceased Donald Campbell, wrought as a baker in the employment of his father, his only remuneration being his board, lodging, and clothing, In or about said year 1875 the defender was married, and his father thereupon, in consideration of the defender's previous and largely gratuitous services to him, made over and gifted his business and all his trade utensils to the defender, arranged to give him the occupation of the dwelling-house and bakehouse, and the use of his furniture, for an annual rent of £30 sterling, and commenced to live with the defender, and work in his employment at the remuneration of 9s. per week, and bed and board. This arrangement continued till the date of his father's marriage with the pursuer in January 1882, and was and has all along been well known to the pursuer.”

This was substantially admitted by the pursuer, under the explanation that the defender had not paid any rent.

The pursuer pleaded—“(1) No relevant defence; (2) in the circumstances condescended on, the pursuer is entitled to declarator with expenses as concluded for; and (3) on a sound construction of the said antenuptial contract of marriage, the pursuer is entitled to the subjects described in the summons.”

The defender pleaded—“(1) No title to sue. (2) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons. (3) On a sound construction of the said antenuptial contract of marriage, the pursuer is not entitled to decree as concluded for. (4) The pursuer is barred by acquiescence and actings from insisting in the conclusions of the summons. (5) The defender being heir-at-law of the deceased Donald Campbell, is entitled to the subjects described in the summons.”

The Lord Ordinary ( M'Laren) on 14th June 1887 found and declared in terms of the first and second declaratory conclusions; quoad ultra assoilzied the defender; and found no expenses due to or by either party.

“ Opinion.—I am of opinion that under the antenuptial contract founded on the right claimed by the pursuer of this action does not arise. The clause founded on begins by giving the pursuer, the wife, full power and liberty to test upon and divide and apportion among the husband's lawful children, whether by his first or intended marriage, and his friends, in such shares as she might think proper, his whole means and estate, in the event of his death without having left any settlement regulating the disposal thereof, and that power is applicable to heritable and moveable estate. In the same deed the wife is given a liferent of one of the two heritable properties in Callander, which belonged to the husband, the disponer. Now there is, in my apprehension, nothing to indicate that these words, purporting to give a power of appointment and division, import any larger interest or right given to the wife than in their strict meaning they convey. I think it is a power of appointment—and nothing more—that is given to Mrs Campbell under the clause. But I quite assent to the argument for the pursuer that whatever is necessary to the due execution of that power by the donee is implied in the contract of marriage. I think that in the contract there is implied the necessary machinery for enabling the lady to make up a title as trustee if such title were necessary to enable her to exercise the power; because under the recent Conveyancing Statute words in a deed purporting to deal with heritable property, which if used with reference to moveable property would entitle the donee to receive and apply it, are to have the same effect with reference to the heritable estate that is associated

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with the moveables in the conveyance. Accordingly, in the series of decisions that have followed upon these statutes, it has been held that conveyances in trust, although not expressed in the form of de presenti transfers, may be the ground of adjudication, or for the execution of a notarial instrument, in virtue of the facilities given by the Conveyancing Act for the testamentary disposal of landed property. But the real question here is, whether the antenuptial contract contains any evidence of an intention on the part of the husband, or an expectation on the part of the wife in consequence of the husband's words, that she should be the trustee of his heritable estate. If she is trustee, she may make up a title in the form contemplated by the conclusions of the action. If she is not a trustee, then the action falls. Now, nothing can be more clear than that the donee of a simple power of appointment may execute the appointment without being vested in the estate, and therefore it is not at all necessary to the fulfilment of the husband's obligation that his wife should be vested in his estate. I think she may have all the control that it was intended she should have over the estate by executing the power in the terms in which it is given. And further, there is nothing, so far as I can see, in the other averments of the record which appear to interfere with or militate against the capacity or power of the wife to execute a deed of division. As regards one of the subjects, she is the life-renter, as the fee is undisposed of except through this power. As regards the other subject, there was some arrangement made by the husband in his lifetime in favour of his eldest son which apparently terminated at his death, and the eldest son is now possessing that property on the title of apparency. But if the pursuer should think fit to exercise the power of appointment, which I think is a testamentary power coming into effect upon her death, then the result is that the obligation created by the marriage-contract will devolve upon the husband's heir. He is bound to fulfil his father's obligation, and therefore he must either make up his title, and convey to the persons in whose favour the deed is executed, or he must submit to their making up a title at their own hands in one or other of the forms which are now provided by statutory enactment for that purpose. While therefore I do not doubt that the pursuer is well founded in the substance of the claim which she asserts, I think she is wrong in the mode she has taken to assert it.

“In what I have already said regarding the interpretation of this antenuptial contract I have been assuming that, in so far as the deed gives the power, it is a power to divide and apportion heritable estate as well as moveable estate. But it is not a question under the Conveyancing Acts at all. I have considered these Acts with reference to the pursuer's contention that she is entitled to expede a title to these lands in her own name. I have decided against her on the ground that there is not such an indication of intention that she should be vested in the estate in her lifetime as would satisfy the requirements of the Conveyancing Acts.

“But in the interpretation of powers of disposal technical language is not necessary, nor was it ever necessary; and if I had been dealing with this language in a deed executed before the passing of the Acts 1868 and 1874 I should equally have held that, in a marriage-contract where heritable as well as moveable estate is regulated, a power to test upon the granter's whole means and estate is a power to test upon heritage.

“The result will be, that the pursuer, according to my judgment, is entitled to decree in terms of the first and second declaratory conclusions, and that the defender is entitled to absolvitor from the third conclusion.

“I think this is not a case for expenses to either side. The difficulty has been occasioned by the parties to this antenuptial contract not having made their meaning clear, and there has been divided success. It was necessary for the pursuer to come into Court, but she has claimed too much. I think the defender had a material right to object to the property being taken out of his hands during his lifetime.”

The defender reclaimed, and argued—(1) That the Lord Ordinary was right in assoilzieing the defender from the third conclusion of the summons, but that as regarded the first two conclusions of the summons these were only introductory to the third, and could not be the subject of a decree of declarator. (2) The words “means and estate,” looked at with reference to the context of the deed, did not include heritage. No doubt these words were habile to convey heritable property if the truster so intended—31 and 32 Vict. c. 101, sec. 20. But they were words which required construction— Urquhart v. Dewar, June 13, 1879, 6 R. 1026, The question was, in what sense did the maker of the deed use them? If they were read as meaning moveable estate only, then the deed was intelligible, but if read as including heritage, then it was a mass of contradictions. There was an antecedent probability that the husband was in the deed dealing with his moveable property only. He gave no power of making up a title to his heritage, which indicated that the power of dividing and apportioning applied only to moveables. The words “as executrix foresaid” were conclusive. The pursuer was substantially made legatee of the whole moveable estate. Assuming that the words of bequest included heritable estate, they were inconsistent with the liferent provision which the heir was bound to pay. According to the view of the other side, the pursuer had got a bequest of heritage in trust which had been restricted in a former part of the same deed to a liferent.—[ Lord President—If we agree with the Lord Ordinary we should dismiss the action. In that point of view the only question is, whether the words “means and estate” include heritage?]

The defender argued—1. That the pursuer had the entire administration of the whole estate, and though only termed an executrix she was really a trustee— Ainslie, &c., v. Ainslie, December 8, 1886, 14 R. 209. She was trustee of all the heritable and moveable property left by her husband. The words “means and estate” clearly included heritage, unless there was something in the deed restricting their meaning, and there was nothing in the present deed— Urquhart v. Dewar, supra cit.; M'Leod's Trustees v. M'Luckie, &c., June 28, 1883, 10 R. 1056; Robb's Trustees

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v. Robb, May 14, 1872, 10 Macph. 692. Until the pursuer exercised her power the defender had no right to, or interest in the estate— Bryson's Trustees v. Clark, &c., November 26, 1880, 8 R. 142. The rents were to be accumulated for the pursuer, and she could test on these.

At advising—