Battye's Trustee v Battye
| Jurisdiction | Scotland |
| Judgment Date | 01 March 1917 |
| Date | 01 March 1917 |
| Docket Number | No. 51. |
| Court | Court of Session |
Lord President, Lord Skerrington, Lord Anderson.
Succession—Foreign—Marriage-contract—Construction—Destination to wife's ‘own heirs, executors, or assignees whomsoever’—Marriage-contract executed in Scotland—Wife dying domiciled in England—Lex loci contractus or lex domicilii.
An antenuptial contract of marriage, entered into between a domiciled Englishman and a domiciled Scotswoman, provided that, in the event of failure of children of the marriage, the fund contributed by the wife should belong, on the death of the survivor of the spouses, to the wife's ‘own heirs, executors, or assignees whomsoever.’ The fund contributed by the wife consisted originally of a sum secured over Scottish heritable property. The marriage-contract was prepared by Scottish solicitors, was in favour of Scottish trustees, and was in Scottish form. It contained provisions peculiar to Scots law, such as satisfaction of legitim, exclusion of the jus mariti and right of administration, and consent to registration for preservation and execution. The wife died domiciled in England without issue and survived by her husband, who, in terms of the contract, received the income of the fund during his lifetime.
Held that, on his death, the wife's heirs according to the Scots law of succession, and not according to the English law, were entitled to the fund.
Marriage-contract—Antenuptial contract—Revocation—Wills Act, 1837 (7 Will. IV. and 1 Vict. cap. 26), sec. 18.
Opinions (per Lord Skerrington and Lord Anderson), that a provision in an antenuptial contract of marriage, executed in Scotland, whereby a spinster domiciled in Scotland directed that, failing children of the marriage, her estate should be made over to her heirs, executors, or assignees, was not revoked by operation of the Wills Act, 1837, upon her marriage to a domiciled Englishman.
On 6th April 1916 a special case was presented for the opinion and judgment of the Court with regard to the construction of a clause contained in an antenuptial contract of marriage entered into in 1862 between Captain (afterwards Major-General) Henry Doveton Battye and Miss Susan Wellwood Boswell, afterwards Mrs Battye. The question at issue was whether, under a destination to Mrs Battye's ‘own heirs, executors, or assignees whomsoever,’ her heirs according to the Scots law of intestate succession, or her heirs according to the English law of intestate succession, were entitled to succeed to the estate settled by her.
By the marriage-contract, which was executed in Scotland and was in Scottish form, Captain Battye, who was therein designed as ‘captain in Her Majesty's Indian Army,’ bound himself to provide and secure certain sums to Mrs Battye in liferent for her liferent use allenarly in the event of her surviving him, and to the child or children of the marriage in fee.
The contract then proceeded:—‘For which causes and on the other part the said Susan Wellwood Boswell … hereby dispones, assigns, conveys and makes over to [certain trustees resident in Scotland] the Legacy of One thousand Pounds Sterling bequeathed to her by the deceased Andrew Moffat Wellwood Esquire of Garvock her Grandfather in his Trust Disposition and Settlement dated the thirteenth day of February and recorded in the Books of Council and Session the fifth day of March One thousand eight hundred and forty seven and which in terms of said Settlement is now secured as a real and preferable burden upon the Lands of Foleyhills in the County of Berwick and Colinton Mains in the County of Edinburgh … And likewise [any interest she might have or acquire under her mother's marriage-contract], but in trust always for the following uses and purposes, namely, the said trustees shall allow the said sum of One thousand Pounds to remain a burden on the said Lands of Foleyhills and Colinton Mains so long as the heir of Entail in possession of these Lands shall pay interest thereon at five per cent but should the interest be reduced the said Trustees shall then either uplift the said sum or allow it to remain at a reduced rate of interest as may appear to them most prudent and advisable, according to the state of the money market at the time: And if the said sum of One thousand Pounds shall be uplifted by the Trustees or paid up at any time by the heir of Entail the said Trustees shall invest the same and also the sums of money and means and Estate last above conveyed to them when they shall receive the same in heritable security or in the Government funds, or in the purchase of such Stocks as they may consider most safe and beneficial or as may be approved of by the said Henry Doveton Battye and Susan Wellwood Boswell if in Great Britain at the time And power is hereby given to the said Trustees to vary the Investments of the said Trust Funds at the joint request of said Susan Wellwood Boswell and Henry Doveton Battye—the Investments so to be made being approved of by the said Trustees and the said Trustees shall pay the interest dividends or other annual produce of the whole funds means and estate hereby conveyed to them to the said Susan Wellwood Boswell during her life upon her own receipts which shall be sufficient discharges to them therefor, and after her death to the said Henry Doveton Battye in the event of his surviving her during his life And on the death of the survivor of them then the said Trustees shall pay or convey and make over the principal sums and means and Estate in their hands to the child or children of the said Marriage in such manner and in such proportions as the said Henry Doveton Battye and Susan Wellwood Boswell or the survivor of them may direct and appoint by any writing under their hands and failing any such direction and appointment then to the said children equally among them share and share alike and failing children then to the said Susan Wellwood Boswell's own heirs, Executors or Assignees whomsoever Declaring that the jus mariti and right of administration of the said Henry Doveton Battye in the sums means and estate conveyed to the said Trustees by the said Susan Wellwood Boswell as aforesaid are hereby expressly excluded and renounced by him, nor shall the same nor the interest or produce thereof be liable for his debts already contracted or to be contracted nor affectable by the Diligence of his creditors in any manner of way … which provisions above made for the child or children of the present intended marriage shall be in full satisfaction to them of all bairns' part of gear legitim portion natural Executry and everything else that they could ask or claim by and through the decease of the said Henry Doveton Battye, their father, excepting what he may think fit to bestow of his own good will only: And it is hereby agreed that all manner of action and Execution competent shall pass upon this Contract for implement thereof at the instance of the Trustees before named or to be assumed or at the instance of any of them And both parties consent to the registration hereof in the Books of Council and Session or others competent for preservation and that all necessary execution may pass upon a decreet to be interponed hereto in common form and thereto they constitute
their Procurators.’
After the marriage the spouses resided for a short time in England and then proceeded to India, where Mrs Battye died in 1863 intestate and without issue, and without having assigned or disposed of the trust funds in any way. Thereafter the marriage-contract trustees regularly paid the income of the trust-estate to Major-General Battye until his death, which occurred in 1915. Thereupon, questions having arisen as to the person or persons to whom the trust funds fell to be paid over in terms of the directions contained in the contract of marriage, this special case was presented for the opinion and judgment of the Court.
The marriage-contract trustee was the first party; Major-General Battye's administrator was the second party; and the persons (or their representatives) entitled, according to the law of Scotland, to succeed to the estate of Mrs Battye as at her own death or as at the death of her husband, were the third, fourth, fifth, and sixth parties.
The case stated:—‘5. By the law of England the husband of a married woman dying intestate becomes entitled by succession to the whole beneficial interest in her personal property left undisposed of at the date of her death. The word “heirs” in English law means primarily the person or persons entitled by succession on intestacy to the real property of a deceased person, but when the word is used with reference to personal property it may be construed, according to the context, as meaning the person or persons entitled by succession on intestacy to the personal property of a deceased person. In the case of a grant of personal property to a person's “heirs, executors, and assignees whomsoever,” the word “heirs” would be construed as meaning the person or persons entitled to the deceased's personal property by succession on intestacy, including the husband of a married woman; the word “executors” would be applicable only to the case of a person dying testate and appointing an executor or executors by his will; and the word “assignees” would be construed as meaning persons entitled by assignation inter vivos, or as trustee in bankruptcy, or otherwise by operation of law during the lifetime of the deceased, and also as including all persons entitled beneficially under the will of the deceased.’
The contentions of the parties, in so far as they referred to the first question of law, which was the only question ultimately submitted for the opinion of the Court, were as follows:—‘6. … On the one hand it is maintained by the second party, who is the administrator of the said Major-General Battye, that he is entitled in that capacity to payment of the trust funds, because (1) upon a sound construction of the...
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