Douglas-Hamilton v Duke and Duchess of Hamilton's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 05 May 1961 |
| Date | 05 May 1961 |
| Docket Number | No. 25. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Guest.
Marriage contractAntenuptial marriage contractProvision of alimentary annuity for wife on death of husbandRenunciation of right by wife during subsistence of marriage.
By an antenuptial contract of marriage a husband bound his heirs and executors, inter alia, to pay to his wife on his death, if she should survive him, an alimentary annuity. The husband also obliged himself to provide for certain of the prospective children of the marriage a sum of capital, to be divided after the death of the survivor of the spouses in such shares as the parents, or the survivor of them, might appoint. To secure the various obligations which he had undertaken, the husband transferred certain assets to the marriage contract trustees. During the subsistence of the marriage the wife, by deed of renunciation, purported to renounce the whole provisions in her favour in the marriage contract, including the alimentary annuity to which she was contingently entitled, but only to the extent of the income and capital of certain specified shares held by the trustees. The husband and wife then jointly appointed these shares to one of their sons, declaring that they should vest in him immediately, and directing the trustees to convey the shares to the son.
Held (rev. judgment of Lord Guest, diss. Lord Guthrie) that the wife was entitled, during the subsistence of the marriage, to renounce the alimentary annuity.
Kennedy v. Kennedy's Trustees, 1953 S. C. 60,distinguished.
The Honourable James Alexander Douglas-Hamilton, with the consent and concurrence of his father, the Duke of Hamilton, Brandon and Chatelherault as an individual, and as his curator and administrator at law, and also with the consent and concurrence of his mother, the Duchess of Hamilton, Brandon and Chatelherault, brought an action of declarator against (First) The Most Noble Hugh Algernon, Duke of Northumberland, and Godfrey Lushington Norris, the trustees acting under the antenuptial contract of marriage between the Duke and Duchess of Hamilton, dated 30th November 1937, and registered in the Books of Council and Session on 28th January 1938; and (Second) his four brothers, for any interest they might have. No appearance was entered in the action for the defenders second called.
The pursuer concluded, inter alia:"(1) For declarator (a) that The Most Noble Douglas, Duke of Hamilton, Brandon and Chatelherault, and The Most Noble Elizabeth Ivy, Duchess of Hamilton, Brandon and Chatelherault, in the exercise of the power of appointment conferred upon them by the antenuptial contract of marriage entered into between them dated 30th November 1937 and registered in the Books of Council and Session on 28th January 1938, by deed of appointment dated 6th November 1959, validly and irrevocably appointed to the pursuer the capital of the trust estate held by the defenders first called as trustees under the said antenuptial contract of marriage, but that only to the extent of 430 ordinary shares of the Mexican Eagle Oil Company, Limited, forming part of said capital, and (b) that by virtue of the said appointment the pursuer acquired a vested and indefeasible right of fee in the said 430 ordinary shares of the Mexican Eagle Oil Company, Limited. (2) For declarator that by deed of renunciation dated 6th November 1959 The Most Noble Elizabeth Ivy, Duchess of Hamilton, Brandon and Chatelherault, validly and irrevocably renounced the whole provisions in her favour contained in the said antenuptial contract of marriage, including in particular (a) the annuity of 2000 by way of pin money provided to her by purpose In the Second Place thereof, and (b)her prospective right to the alimentary annuity of such a sum as, after deduction of income tax at the rates current from time to time and all other Government duties which might be payable in respect thereof (other than sur-tax), should yield in each year the sum of 3000 or 4000, as the case might be, provided to her by purpose In the Third Place thereof, but that only to the extent of disburdening and discharging the income and capital of the said 430 ordinary shares of the Mexican Eagle Oil Company, Limited, forming part of the said trust funds. (3) For declarator that by deed of renunciation dated 6th November 1959 The Most Noble Douglas, Duke of Hamilton, Brandon and Chatelherault, validly and irrevocably renounced and assigned to the pursuer his liferent interest in the balance of the income and revenue of the trust funds held by the defenders first called as trustees foresaid, being the income and revenue not required to meet the pin money provided to The Most Noble Elizabeth Ivy, Duchess of Hamilton, Brandon and Chatelherault, as aforesaid, by purpose In the Second Place of the said antenuptial contract of marriage, but that only to the extent of his liferent interest in the said 430 ordinary shares of the Mexican Eagle Oil Company, Limited. (4) For declarator that in the events which have happened the defenders first called are bound to denude themselves of the said holding of 430 ordinary shares of the Mexican Eagle Oil Company, Limited, in favour of the pursuer; and for decree ordaining the defenders first called to transfer to the pursuer the said 430 ordinary shares of the Mexican Eagle Oil Company, Limited."
The following statement of the material facts is taken from the opinion of the Lord Ordinary (Guest):"An antenuptial contract of marriage was entered into between the Duke of Hamilton and the Duchess of Hamilton on 30th November 1937. The first defenders are the trustees under the antenuptial contract of marriage. The pursuer is the second son of the marriage between the Duke and the Duchess.
"Under the antenuptial contract, the Duke of Hamilton bound himself, on his succeeding to the title and dignity of the Duke of Hamilton, to pay to the Duchess an annuity of 2000 pin money. He also bound his heirs and executors, if he succeeded to the dukedom, upon his death to pay sums in name of interim aliment to the Duchess, and, if there was no male issue, to pay to the Duchess an annuity of 3000, and if there was male issue, an annuity of 4000, both annuities being tax free and for her alimentary use allenarly.
"The Duke of Hamilton also obliged himself to provide, after the death of the survivor of the spouses, for the children of the marriage, other than the son who should succeed to the dukedom, as follows:if there was one child 25,000, if there were two children 50,000 and if there were three or more children 75,000. In order to provide security for the obligation the Duke assigned to the marriage contract trustees certain feu duties, lands and shares. The capital sums provided for the children were to be divisible in such shares among the children as the parents might jointly appoint and, failing a joint appointment, as the survivor might appoint and, failing any appointment, in equal shares.
"The balance of the income of the trust funds after payment of the pin money was to be paid to the Duke during his lifetime and solvency; in the event of his insolvency or bankruptcy, the balance was to be paid to the Duchess as an alimentary allowance. After the Duke's death survived by the Duchess the balance of income, so far as not required to meet the obligations undertaken, was to be paid to the person who was then Duke of Hamilton. If the Duchess predeceased the Duke without bearing lawful issue, the trustees were directed to denude themselves of the trust funds and to reconvey to the Duke. Upon the death of the Duchess predeceased by the Duke without leaving lawful issue, the trustees were directed to convey to the persons appointed by the Duke, and, failing appointment, to the person who was then the Duke of Hamilton. There were further provisions for the destination of the balance of the capital upon the death of the survivor of the spouses.
"The Duke of Hamilton made over to the trustees property and assets valued at 200,000, including 430 ordinary shares of the Mexican Eagle Oil Company, Limited. Five children were born of the marriage, of whom the pursuer is the second son, having been born on 31st July 1942.
"By deed of renunciation, dated 6th November 1959, the Duchess released and renounced the whole provisions in her favour contained in the antenuptial contract of marriage, including the pin money annuity of 2000 and the alimentary annuity of 3000 or 4000 free of income tax, as the case might be, to which she was prospectively entitled, but only to the extent of the income and capital of the 430 Mexican Eagle Oil Company shares.
"By deed of appointment, dated 6th November 1959, and by supplementary deed of appointment dated 17th December 1960, the Duke and Duchess of Hamilton made a joint appointment of the capital of the fund of 75,000 forming part of the trust funds to the pursuer, but only to the extent of the 430 Mexican Eagle Oil Company shares, and they declared that the capital of the shares should vest in the pursuer immediately and they directed the trustees to pay and make over these shares to the pursuer, notwithstanding that he had not attained the age of twenty-three and was in minority.
"By deed of renunciation, dated 6th November 1959, the Duke of Hamilton renounced and assigned to the pursuer his liferent interest in the balance of income not required to meet the pin money, but only to the extent of his liferent interest in the 430 Mexican Eagle Oil Company shares, and he directed the trustees to pay the income to the pursuer.
"The questions which arise for decision are focused by the conclusions. The pursuer maintains that the Duchess has validly renounced to the extent therein set forth the pin money annuity and the alimentary annuity to which she is prospectively entitled. He also maintains that the Duke has validly renounced to the extent therein set forth the alimentary annuity of the balance...
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Findlay's, Petitioners
...their interests might be affected, if the arrangement had to be amended. Douglas-Hamilton v. Duke and Duchess of Hamilton's Trustees, 1961 S. C. 205, Commander James Buchanan Findlay, Royal Navy (retired), and Mrs Mary Sancroft Findlay-Hamilton or Findlay, his wife, presented a petition to ......