Drummond v Bell-Irving
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1930 |
| Docket Number | No. 96. |
| Date | 20 March 1930 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Ld. Moncrieff.
Husband and WifeRights arising on dissolution of marriageDivorceParties domiciled in EnglandProvisions under antenuptial marriage-contractMarriage-contract invoking Scots law.
A domiciled Englishman and a domiciled Scotswoman entered into an antenuptial marriage-contract which contained this clause, "It is hereby declared that these presents shall be interpreted and the rights of parties regulated by the law of Scotland." The wife obtained decree of divorce in the English Courts.
Held that the rights of parties under the contract arising on divorce fell to be regulated in the same manner as if decree of divorce had been pronounced by the Scottish Courts.
Montgomery v. Zarifi, 1918 S. C. (H. L.) 128,followed.
Husband and WifeRights arising on dissolution of marriageDivorceProvisions under antenuptial marriage-contractPower given to wife to resettle funds on predecease of husbandWhether divorce equivalent to predecease.
An antenuptial marriage-contract gave power to the wife, in the event of her husband predeceasing her, to withdraw and resettle one-half of the trust funds. The wife, having obtained decree of divorce against her husband, claimed to be entitled to resettle this half as if he had predeceased her. The only provision in the marriage-contract in favour of the husband was an annuity of 1000, payable in the event of his surviving his wife.
Held (diss. Lord Anderson) that the measure of the rights conceived in an antenuptial contract of marriage in favour of an innocent spouse, which upon decree of divorce he or she becomes entitled to enforce, includes those rights, and those rights only, which he or she takes in succession to, and as following upon a forfeiture incurred by, the guilty spouse; and therefore that, as the right to resettle did not follow on a forfeiture by the husband, the wife could not exercise the right.
On 29th August 1928 an action1 was brought by (1) Mrs Violet Margaret Florence Drummond, wife of John Drummond of Megginch, and (2) Sir John William Buchanan-Jardine and others, the trustees nominated and appointed in and acting under a deed of appointment and settlement in trust granted by Mrs Drummond, and dated 15th August 1928, against (1) James Jardine Bell-Irving and others, the trustees acting under the marriage settlement entered into by Mrs Drummond (then Miss Violet Margaret Florence Buchanan-Jardine) in anticipation of her marriage to Edmund Owen Ethelston Peel, and dated 14th and 15th November 1919, (2) Hugh William Jardine Ethelston Peel, the pupil child of the marriage between Mrs Drummond and Edmund Owen Ethelston Peel, and (3) the said Edmund Owen Ethelston Peel. The pursuers concluded for declarator that Mrs
Drummond was entitled to withdraw from the trust created by the marriage settlement of 1919 one-half of the funds held by the trustees thereunder, and to settle the same upon John Drummond and any issue there might be of the marriage between him and the first-named pursuer, and for decree ordaining the first-named defenders to pay over the said one-half of the funds to the second-named pursuers. The first-named defenders alone lodged defences.
The following narrative is taken from the opinion of the Lord Justice-Clerk:"The circumstances which led up to the action are as follow:The pursuer Mrs Drummond, who is a daughter of Sir Robert William Buchanan-Jardine of Castle Milk, was married to the defender Mr Peel on 18th November 1919. Mr Peel is, and always has been, a domiciled Englishman. In contemplation of the marriage an antenuptial marriage settlement, in Scottish form, dated 14th and 15th November 1919, was entered into, the parties to which were the pursuer Mrs Drummondthen Miss Buchanan-Jardine,Mr Peel, and the pursuer's father, Sir Robert Buchanan-Jardine. By the settlement it was declared that these presents shall be interpreted and the rights of parties regulated by the law of Scotland. There was one child of the marriage between the pursuer Mrs Drummond and Mr Peel, viz., the defender Hugh William Jardine Ethelston Peel. On 14th March 1927 the pursuer Mrs Drummond obtained decree of divorce against Mr Peel in the High Court of Justice in England, and the decree was made absolute on 28th September 1927.
"The pursuer Mrs Drummond thereafter married Mr John Drummond of Megginch. There is one child of the second marriage, a daughter, born on 17th December 1928. The pursuer Mrs Drummond is now desirous of making a settlement of one-half of the marriage-contract funds upon her husband, Mr Drummond, and upon the daughter of the second marriage and any other issue there may be of the marriage between her and Mr Drummond. She maintains that she is, in the circumstances which have occurred, entitled to make this settlement. She has accordingly executed a deed of appointment and settlement in trust in favour of the trustees under that deed, who are the second-named pursuers in this action. These trustees have duly accepted office. The pursuers state that they have called upon the trustees acting under the marriage settlement to divest themselves of, and make over to the second-named pursuers, one-half of the funds included in the marriage settlement. They have refused to do so except by authority of the Court. Hence this action."
The marriage settlement of 1919 contained an obligation by Sir Robert Jardine to pay to the trustees acting under the settlement a sum of 250,000 (which obligation was duly implemented), and further provided that the fund should be held for the benefit of Mrs Peel during her life, and on her death for the child or children of the marriage, vesting in the children being postponed until majority or marriage. The settlement also contained these provisions:"(Sixth) In the event of the Second Party [the husband] predeceasing the First Party [the wife], the First Party shall have power to withdraw from the Trust hereby created and to settle one-half of the Trust Fund (if there is issue of the said intended marriage taking a vested interest) or the whole of the Trust Fund (if there is no such issue) upon the husband and issue of a subsequent marriage into which the First Party may enter: And it is hereby declared that these presents shall be interpreted and the rights of parties regulated by the law of Scotland." The settlement also provided for payment to Mr Peel, in the event of his surviving his wife, of an alimentary annuity of 1000, and it was admitted that he had forfeited this provision.
The pursuers pleaded, inter alia:"(1) The marriage between the first-named pursuer and the defender Edmund Owen Ethelston Peel having been dissolved by decree of divorce pronounced against the said defender, and the said defender having in consequence thereof forfeited and lost his whole rights and interests under the said marriage settlement as though he had died as at the date of the said decree of divorce, and the said pursuer being, accordingly, entitled to exercise the powers of withdrawal and resettlement conferred upon her by the sixth purpose of the said marriage settlement, decree of declarator should be granted in terms of the first conclusion of the summons."
The compearing defenders pleaded, inter alia:"(2) The said Owen Peel being still in life, the first-named pursuer has not yet acquired any power under the said sixth purpose to withdraw capital from the said trust fund, and the defenders should therefore be assoilzied. (3) Esto that in a question between the spouses the divorce of Owen Peel is equivalent to his having predeceased the first-named pursuer, the first-named pursuer is not entitled to found on said divorce as equivalent to predecease so as to defeat the rights of the child of her first marriage, and the defenders should be assoilzied. (4) The effect of the said decree of divorce falling to be ascertained by the law of England, and the said divorce not being equivalent according to the law of England to the predecease of the said Owen Peel, the defenders should be assoilzied."
On 28th June 1929 the Lord Ordinary (Moncrieff) assoilzied the compearing defenders.
LORD JUSTICE-CLERK (Alness).This action is brought by (1) Mrs Violet Margaret Florence Drummond, wife of Mr John Drummond of Megginch, and (2) the trustees nominated and appointed in and acting under a deed of appointment and settlement in trust granted by Mrs Drummond, and dated 15th August 1928, against (1) the trustees acting under the marriage settlement entered into between the pursuer Mrs Drummond, then Miss Violet Margaret Florence Buchanan-Jardine, in anticipation of her marriage with Mr Edmund Owen Ethelston Peel, dated 14th and 15th November 1919, (2) Hugh William Jardine Ethelston Peel, the pupil child of the marriage between Mrs Drummond and Mr Peel, and his tutors and curators if he any has, and (3) Mr Peel. The purpose of the action is to obtain decree of declarator to the effect that the pursuer Mrs Drummond is entitled to withdraw from the trust created by the marriage settlement referred to one-half of the funds held by her marriage-contract trustees in trust under the settlement, and to settle the same upon Mr Drummond and any issue there may be of the marriage between him and the pursuer. [Then followed the narrative quotedsupra.]
The question whether the claim made by the pursuer Mrs Drummond is a good one, and whether the deed of appointment which she has executed is effective, depends on the provisions of the marriage settlement, to which I must now refer.
By that deed Sir Robert Jardine bound and obliged himself, within twelve months after the marriage, to pay or transfer to the trustees under the settlement, as such trustees, the sum of 250,000 sterling in cash, or securities to that value, in trust for the purposes of the deed. That obligation was duly implemented by Sir Robert. The clause in the marriage settlement on which the present question turns is the sixth. It...
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