Scottish Court of Session Decisions

By trust-disposition and settlement executed by the now deceased Mr and Mrs Urquhart in 1833, Mr Urquhart conveyed the residue of his estate, after providing for his wife if she survived, to their only son J. G. Urquhart on his attaining twenty-five. In 1847 J. G. Urquhart married Jessie Kincaid, and his father and mother were parties to his contract of marriage. By this contract the Urquharts, father and son, bound themselves to pay an annuity to Mrs J. G. Urquhart if she survived her husband, and Mr Urquhart senior and his wife bound themselves to provide, by proper

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deeds to take effect at their deaths their whole estates of which they should die possessed for behoof of J.G. Urquhart in liferent allenarly, and the children of the intended marriage in fee, and for that purpose to grant all necessary deeds to certain trustees.

By a codicil to their settlement Mr and Mrs Urquhart, on the narrative of the obligations they had undertaken in their son's contract of marriage, revoked the direction of their settlement as to the residue of Mr Urquhart's estate, and declared it to be at an end.

Mr Urquhart died in 1857, and his moveable estate was conveyed by his widow as his executrix to the marriage-contract trustees of his son, who also made up a title to his heritage.

Mrs Urquhart died in 1871.

After her death the trustees under the settlement and the trustees under the marriage-contract conveyed to the trustees of the marriage-contract the whole funds falling under the trust-settlement and marriage-contract.

In 1886 Mrs J. G. Urquhart had been married for nearly forty years, was sixty-one years of age, and there had been no child of the marriage.

Mr J. G. Urquhart contended that he was entitled, as heir-at-law and next-of-kin of his said father and mother, on procuring the consent of his wife, the said Mrs Jessie Kincaid or Urquhart, to obtain from the said marriage-contract trustees a conveyance of the fee of the said marriage-contract estate, subject to the said Mrs Jessie Kincaid or Urquhart's annuity, in respect that in the events that had happened the fee of the said estate now stood undisposed of; or otherwise, in respect that the fee thereof was vested in him (J. G. Urquhart), subject only to defeasance by the birth of children of his present marriage, which could not now take place. Mrs Jessie Kincaid or Urquhart, his wife, consented to the fee of the said marriage-contract estate being made over to him, subject to the burden of the annuity payable to her under the said trust-disposition and settlement, codicil, and marriage-contract.

The trustees maintained that the fee of the marriage-contract estate was vested in them, and that they were not entitled or in safety—at least without judicial sanction—to make over the estate to J. G. Urquhart, but were bound to hold it at least till the dissolution of his marriage.

This Case was stated by him and the trustees to settle the question thus arising, the trustees being first parties, and J. G. Urquhart second party.

The questions were—“(1) In the events that have happened, must the fee of the estate dealt with by the said marriage-contract be now held to stand undisposed of by the said John Urquhart and Mrs Elizabeth Grubb or Urquhart? (2) In the circumstances mentioned, is the second party now entitled to obtain a conveyance of the said marriage-contract estate, subject to the burden of the said annuity in favour of the said Mrs Jessie Kincaid or Urquhart, she being a consenting party to such a conveyance?”

Cases cited by the trustees (the first party)— Coxton v. May, 1878, L.R., 9 Chan. D. 388; Haynes v. Haynes, 1868, 35 L. J., Chan. D. 303; Scheniman v. Wilson, June 25, 1828, 6 S. 1019; Shaw v. Shaw, ibid, 1149; Cameron v. Young's Trustees, Feb. 8, 1873, 45 Jur. 272; Fleming v. M'Lagan, Jan. 28, 1879, 6 R. 588; Blackwood v. Blackwood's Trustees, Feb. 26, 1833, 11 S. 433; Dickson, June 19, 1886, 13 R.

Cases cited by the husband (second party)— Lord v. Colvin, July 15, 1865, 3 Macph. 1083; Cordon v. Young, 1865, 55 Scot. Jur. 272; M'Laren on Wills, ii. sec. 1400; Pretty v. New-bigging, March 2, 1854, 16 D. 667; Adney v. Greatree, 38 L.J., Chan D. 414.