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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A. v. B [1875] ScotLR 12_509 (26 June 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0509.html Cite as: [1875] ScotLR 12_509, [1875] SLR 12_509 |
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Page: 509↓
Special Case
A testator having left certain shares in his succession with this proviso “in the eventof any of my said daughters being married her share of said profits shall lapse and fall into the residue of my estate.”— Held that this was a valid condition and not an illegal restraint upon marriage.
Observations (per Lord Justice-Clerk) on the English law as to conditions antecedent and subsequent, and their non-applicability to Scotch law.
Circumstances in which held that there was no such ambiguity in the testator's deed as to entitle the party questioning its intention to expenses out of the trust-estate.
This was a Special Case, presented for the opinion and judgment of the Court by Mrs A., daughter of Mr B., the testator, of the first part, and by Mrs B., the widow, and by the other unmarried daughters of the testator, as parties of the second part.
Mr B. died on 8th October 1873. He was twice married, and was survived by his second wife and by the following children, viz.:—By his first marriage two sons and three daughters, Mrs A. being the youngest; and by his second marriage six children, all in minority. Mrs A., the party of the first part, was married on 21st December 1871. The other two daughters of the first marriage are unmarried.
Page: 510↓
In virtue of the powers conferred upon the trustees and executors by the trust-deed, they entered into an agreement with the surviving partners of the testator in his business, by which the truster's capital remains in the business from the commencement of the new copartnery at 8th October 1873 till Whitsunday 1883, with a break at 31st January 1878, a certain portion of the profits derivable therefrom to be paid over to them and to be distributed by them in accordance with the directions contained in the trust-deed. The first balance of the business since the truster's death has now been struck, and the share of profit accruing to the trustees as at 31st January 1875 has been ascertained to be £899, 4s. The proportion of this sum which would fall to the party of the first part would therefore be one-ninth, or £99, 18s. 2d.
The first party claimed a share of these profits under the deed, on the ground that it was provided in the deed that “in the event of any of my said daughters being married, her share of said profits shall lapse and fall into the residue of my estate,” and the second party resisted this claim. The first party contended that this condition being in restraint of marriage was illegal, and therefore that no lapse had taken place; and further, that supposing it were not illegal, upon this ground it was inapplicable to her, because she was married, not merely before the truster's death, but before the execution of the trust-disposition and settlement. On the other hand, the parties of the second part contended that the condition upon which the legacy was to be paid was valid and not illegal; that the object of the truster was to secure an income to unmarried daughters of the first marriage by giving them one-third of the truster's share of profits, he assuming that any married daughter would be supported by her husband, and that there was nothing illegal in her father making such a distribution of the income from his estate among his daughters.
The leading clauses in the deed were as follows:—“ Fourth, In order that the full benefit may be obtained from my means, invested in my business and for the better maintenance of my widow and children, it is my desire that the business be carried on for some time under the supervision of my trustees; and for that purpose I authorise and empower my trustees to allow whatever capital I may have invested in the business at the date of my decease to remain therein, and my trustees will allow suitable salaries for the management, and on the annual profits being ascertained my trustees shall dispose of the share thereof belonging to me as follows:—They shall pay over one-third thereof to my wife, one—third thereof to my daughters, equally among them, and the survivors and survivor of them, but in the event of any of my said daughters being married, her share of said profits shall lapse and fall into the residue of my estate; and they shall hand over the remaining third to my wife, to be expended by her for the use and behoof of the younger children of our family until they shall severally attain majority, and thereafter the said third of my share of profits shall fall into the residue of my estate; but my trustees shall have power to pay annually a part thereof to such of my younger children for their maintenance as such of my trustees shall think proper. Lastly. After the death of my wife, my trustees shall, with all convenient speed, proceed to realise my whole means and estate, heritable and movable, and convert the same into money, so far as not already done, and after payment and delivery of any legacy or legacies which I may hereafter direct, they shall divide and pay over the same among my children as follows:—They shall divide and pay over one-third thereof to and among my whole daughters by both marriages, equally among them, share and share alike, payable on their severally attaining majority or being married; and shall pay over and divide the remaining two-thirds of my said means and estate to and among my whole children, equally among them, share and share alike, payable to my sons on their severally attaining majority, and to my daughters on their severally attaining majority or being married; and in the event of any of my children declining to allow his or her share in my succession to remain unpaid until the death of my wife, my trustees are desired to pay to such child the share to which he or she would be entitled at common law, and no more.”
The question for the opinion and judgment of the Court was:—“Whether the party of the first part is entitled to claim a share of the one-third of the profit from the business which has now been declared by the last balance-sheet, and a similar share of the profits as declared by the balance-sheets of future years?
Argued for first party—A condition which amounts to an absolute prohibition of marriage is illegal, and must be held pro non scripto. But conditions which are only restraints, and not absolute prohibitions, are valid. A condition that a person should marry with the advice of A. B., held pro non scripto, whether made by a parent or by a stranger ( Culbirnie, Kennoway). A condition of the nature of a restraint imposed by a stranger was placed by later decisions on a different footing from one imposed by parents, and effect was given to it ( Rae v. Glass). Later, again, conditions imposed by parents were assimilated to those imposed by strangers ( Buchanan). Rigour relaxed so that effect was not given to unreasonable conditions ( Foord, Gordon v. Petrie, M'Kenzie). The same became the law gradually with respect to restraints imposed by parents ( Buntine's Trustees, Wellwood's Trustees). The law of England supports our view ( Bellairs, Allan). The tendency gradually of the law in Scotland has been against such restrictive conditions, though formerly it was otherwise.
Authorities:—Stair, i. 3, 3; Ersk., iii. 385; Bell's Prin., § 39, § 1785; Bankton, i. 5, 29; Bell's Comm. (M'Laren), 321; Culbirnie v. Laird of St Monance, 1578, M. 2963; Kennoway v. Campbell, 1617, M. 2964; Rae v. Glass, 1673, M. 2966; Buchanan v. Buchanan, 1680, M. 2968; Foord, 1682, M. 2970; Gordon v. Petrie, 1682, M. 2974; M'Kenzie, 1774, M. 2977; Buntine's Trustees v. Buchanan, 1710, M. 2972; Wellwood's Trustees v. Boswell, 1851, 13 D. 1211; Bellairs v. Bellairs, 18 L. R., Eq. 510; Allan v. Jackson, 19 L. R., Eq. 631.
Argued for second parties—The law of Scotland recognises no such doctrine as presented by the English authorities.
Authorities;— Kidd v. Kidd, 2 Macph. 227, 10th Dec. 1863; Stackpoole v. Beaumont, 3 Ves.
Page: 511↓
viii. 9; Wellwood's Trustees, 13 D. 1211, and 19 D. 187; Fowlis v. Gilmour, 1672, M. 2965; Hay v. Wood, M. 2982; Ommaney v. Bingham, 3 Paton, 461; Fraser v. Rose, 11 D. 1466; Jarman on Wills, ii. 46; Newton v. Marsden, 31 L. J. Ch. 690. At advising—
But, my Lords, this is not a case which raises such a question. What we have here is a fund left by the testator, who by his will directs his trustees what to do with the profits of the fund year by year. Now they are directed not to pay these profits or the third of them over to Mrs A., but into the residuary fund. She never had right to this legacy; there was no restraint put upon her, for she was married before the testator's death, and the Court can only be guided by the deed. The whole argument proceeded, I think, upon a misapprehension of the English principle. I may here refer to one case which seems admirably to illustrate the distinctions drawn by the law of England between conditions antecedent and conditions subsequent—that is, the case of Davis, 6th June 1862, Law Times, vol. vi., p. 850. Where a testator leaves a sum of money to a person, say on condition of his marrying a certain lady, that would be a condition antecedent—until he married the lady in question he acquired no right to the money; where, on the other hand, the condition of the legacy is that the legatee should lose the money if he married a certain lady, that would be a condition subsequent, and as such null and void.
I may only add that the fact of these profits forming no part of the estate of the testator, not having been earned until after his death, does not affect the point at issue.
On both grounds the clause must receive effect according to the terms in which it is couched. The lady was married before the death of the testator, her father, and to argue that this was a condition to restrain from marrying a lady already married seems almost absurd.
The Court answered the question in the negative.
On the question of expenses, counsel for Mrs A. submitted, on the authority of the case of Wright, 1870, that the matter having been fairly brought before the Court, and the ambiguity having been caused by the testator himself, he was entitled to Mrs A.'s expenses out of the estate of the testator.
Counsel for Mrs B. said that he must resist this motion, although he would not ask expenses against Mrs A.
The Court refused to allow Mrs A's expenses out of the trust-funds.
Page: 512↓
Counsel for Mrs A.— Dean of Faculty (Clark, Q.C.) and Crichton. Agents— Duncan & Black, W.S.
Counsel for Mrs B. and Others— Fraser. Agent— John Galletly, S.S.C.
R” Clerk.