Scottish Court of Session Decisions

James Hadden junior, painter, Leith, and others, the trustees under a trust conveyance executed by Miss Jane Somerville (afterwards Middleton), dated 24th February and registered 18th March 1887, first parties; the said Mrs Jane Somerville or Middleton, second party; and William Henderson Middleton and others, the children of Mrs Middleton, third parties, presented a special case dealing with the said trust conveyance.

By the said trust conveyance Miss Jane Somerville, “having in contemplation my approaching marriage to John Middleton,” assigned and conveyed to trustees named, and their successors in office, “all and sundry my whole means and estate, heritable and moveable, real and personal, at present belonging or which may belong to me at any time during the subsistence of the said approaching marriage” (and, in particular, a sum of £400 then lying on deposit-receipt) “in trust always for the following purposes:— First, For the expense of carrying this trust into effect: Second, For payment of the whole free annual produce or income to me of the estate under their charge during my lifetime: Third, I direct my said trustees to hold the whole residue of my said means and estate after my death for behoof of the children of the said approaching marriage or any other marriage I may enter into, and to expend the whole free annual produce or income for their maintenance and support until the youngest shall reach the age of twenty-one years complete: Fourth, On my youngest child attaining the age of twenty-one years, as aforesaid, I direct my said trustees to make payment to my said children of the residue of the estate under their charge in such proportions as I may direct in any writing under my hand, and failing such writing, then equally among them, share and share alike: Fifth, Failing issue of my body, and in event of my not leaving a settlement, I direct my said trustees to convey the said residue of the estate under their charge to my own next-of-kin.”

Immediately after its execution, the trust conveyance and the sum of £400, being the whole estate then belonging to the truster, were delivered to the trustees, who on 18th March 1887 accepted office. On 25th February 1887 Miss Somerville was married to Mr Middleton. No marriage contract was entered into between the spouses, and no obligation was granted by Mr Middleton in respect of the said trust conveyance. Mr Middleton died on 30th November 1902 leaving five children of the marriage. Thereafter Mrs Middleton desired to bring the trust to an end and to realise the capital, which consisted of the said sum of £400, but the trustees refused to denude.

The second party maintained that she was entitled to revoke the trust conveyance at will. The first parties and the third parties concurred in maintaining that the second party was not entitled to revoke, and that the third parties had acquired a jus quœsitum under the trust which barred revocation.

The question of law submitted was—Is the second party entitled to revoke the said trust conveyance, and to call upon the first parties to denude in her favour?

Argued for the second party—The trust conveyance was for administrative and testamentary purposes only. It was not a marriage contract, and there were no reciprocal obligations as in Lyon v. Lyon's Trustees, March 12, 1901, 3 F. 653, 38 S.L.R. 568. The provisions were of a testamentary nature. Such trusts were revocable— Watt

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v. Watson, January 16, 1897, 24 R. 330, 34 S.L.R. 267—unless the deed were declared irrevocable— Murray v. Macfarlane's Trustees, July 17, 1895, 22 R. 927, 32 S.L.R. 715—or unless a jus quœsitum were created at the date of the deed— Byres' Trustees v. Gemmell, December 20, 1895, 23 R. 332, 33 S.L.R. 236. No jus quœsitum was here conferred upon the children— Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027, 15 S.L.R. 690,—and the children obtained only a spes successionis— Watt v. Watson, cit., per Lord Trayner, at 24 R. p. 341. Here there was an acquirenda clause, which distinguished the case from Smitton v. Tod, December 12, 1839, 2 D. 225. Reference was also made to Somerville v. Somerville, May 18, 1819, F.C.

Argued for first and third parties—This was a delivered trust for behoof of beneficiaries who were now in existence. The ground of decision in Watt v. Watson ( cit.) was that no beneficiaries existed, per Lord M'Laren at 24 R. p. 339. Lyon v. Lyon's Trustees, cit. sup.; Stevenson v. Stevenson's Trustees, October 31, 1905, 13 S.L.T. 457; M'Gregor v. Sohn, February 1, 1908, 15 S.L.T. 926. All the purposes of this trust were marriage-contract purposes, and there was an ordinary acquirenda clause. In Mackenzie and Byres’ Trustees, cit., the trusts were not in contemplation of marriage, and there were no beneficiaries existing at the time of revocation. This case fell under the main rule that delivered trusts are irrevocable quoad existing beneficiaries. Smitton v. Tod, cit. sup.; Shedden v. Shedden's Trustees, November 29, 1895, 23 R. 228, 33 S.L.R. 154.