Fortington v Lord Kinnaird
| Jurisdiction | Scotland |
| Judgment Date | 26 March 1942 |
| Date | 26 March 1942 |
| Docket Number | No. 24. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION with three consulted Judges.
Lord Russell.
Husband and WifeRights arising on dissolution of marriageDivorceProvisions under antenuptial marriage contractAnnuity payable by husband's father during wife's survivance of husbandWhether divorce of husband equivalent to his death.
By an antenuptial contract of marriage between two spouses, to which their fathers were parties, the father of the husband bound himself to pay to the marriage-contract trustees a sum of money for the formation of a fund described as "the husband's fund,"the income of which was to be paid to the husband during his life and to the wife after his death. The father further bound himself, in the event of the wife surviving the husband and there being no issue of the marriage alive at the husband's death, to pay to the marriage-contract trustees during the survivance of the wife an annuity to be dealt with as income of "the husband's fund."
The wife, having divorced the husband, brought an action against his father for declarator that the annuity became payable as from the date of the divorce. There were no children of the marriage.
Held, by a Court of seven judges (rev. judgment of Lord Russell, diss. the Lord President, Lord Fleming and Lord Carmont), that the rights which the wife took under the marriage-contract upon the decree of divorce were not restricted to those rights only which she took in succession to, and as following upon the forfeiture incurred by, her guilty husband and to personal obligations, if any, undertaken by him in the contract, but included the right to payment of the annuity, although the obligation to pay was an obligation of the father and was prestable by him only after the husband's death; and declarator granted.
Johnstone-Beattie v. JohnstoneUNK, (1867) 5 Macph. 340,followed; Drummond v. Bell-Irving, 1930 S. C. 704, disapproved.
Administration of JusticeSources of common lawChair of Scots Law at universityProfessor's lectures published posthumously by legal societyValue as authority.
The lectures delivered by Baron Hume while holding the chair of Scots Law at Edinburgh University were published more than a hundred years later by the Stair Society. They were referred to in a debate concerning the effect of divorce upon the rights of the parties to an antenuptial contract of marriage.
Observations on the value of such publications as authorities.
On 6th May 1938, Nadia Alexandra Jardine Fortington (hereinafter referred to as the pursuer) was married to the Honourable Graham Charles Kinnaird, Master of Kinnaird, son of the Right Honourable Kenneth Fitzgerald Kinnaird, Baron Kinnaird of Rossie. There were no children of the marriage, and on 3rd September 1940 the marriage was dissolved in an action of divorce at the instance of the pursuer against her husband on the ground of his adultery.
By an antenuptial contract of marriage between the pursuer and her husband, to which Lord Kinnaird and the pursuer's father, Harold Augustus Fortington, were parties, Lord Kinnaird bound himself to contribute a capital sum for the purpose of constituting a fund to be known as "the husband's fund."The contract further contained, inter alia, the following provisions:
Article 2. "(c) Lord Kinnaird for himself and his foresaids hereby binds himself and them all jointly and severally, without the necessity of discussing them in their order, and subject as aftermentioned, to pay to the trustees in the event of the wife surviving the husband and there being no issue of the marriage alive at the husband's death, an annuity or yearly sum of two hundred pounds as from and after the death of the husband and during the survivance of the wife, and while she does not re-marry. But (i) the said annuity or yearly sum shall not be payable if, prior to the death of the husband, a further sum of five thousand pounds shall have been provided to the husband's fund: (ii) if such further sum of five thousand pounds shall have been partly provided during the husband's lifetime and/or if any payments to account of said sum are made after the husband's death the said annuity or yearly sum of two hundred pounds shall in respect of the period commencing at the husband's death as regards payments to account made prior to said death and in respect of the period from and after the date of each and every payment made to account of the said sum of five thousand pounds after the husband's death be diminished in the same ratio as such payment to account shall bear to the said sum of five thousand pounds; (d) the said annuity or yearly sum, if and to the extent it shall be received, shall be dealt with by the trustees as income of the husband's fund; "
Article 3. "Subject as aftermentioned, the trustees shall pay or apply the free annual income of the husband's fund to or for behoof of the husband during his life, and from and after the husband's death to or for behoof of the wife during her survivance and while she does not re-marry. "
Article 8. "The provisions hereinbefore contained in favour of the wife shall be and are hereby accepted by her as in lieu and full satisfaction of all terce, dower, jus relict, mournings, aliment, and every other right or claim which she could ask or demand on the decease of the husband, his own goodwill alone excepted, and such terce, dower, jus relict, mournings, aliment, and other legal rights are hereby renounced and discharged."
Following upon the divorce, the pursuer and Everard Kenneth Brown, her mandatary, brought an action against Lord Kinnaird, and also against the marriage-contract trustees and Mr Fortington for any interest they might have, for declarator1 that "the defender is bound under and in virtue of article 2 (c) of the antenuptial
contract of marriage to make payment to the trustees foresaid of the sum of 200 sterling per annum as from the 3rd day of September 1940 during the survivance of the pursuer and while she does not re-marry, and subject to the provisions"of article 2 (c) (ii) of the said antenuptial contract of marriage;
Lord Kinnaird alone lodged defences, and the facts above set forth were not disputed.
The parties averred, inter alia:(Cond. 4) "As the husband of the said Nadia Alexandra Jardine Fortington (otherwise Mrs Nadia Alexandra Jardine Fortington or Kinnaird) has been divorced and there is no issue of the marriage, the eventuality contemplated in said article 2 (c) of the marriage contract has emerged, and the said annuity is now payable. The defender, although repeatedly requested to do so, has however refused to make any payment towards implementing his obligations under said article 2 (c) or to give any explanation of his refusal to do so. The present proceedings have consequently been rendered necessary. Admitted that the Master of Kinnaird is still alive. Quoad ultra the defender's averments, in so far as not coinciding herewith, are denied."(Ans. 4) "Admitted that this defender has refused to pay the said annuity.Quoad ultra denied. Explained that the only eventuality contemplated was the dissolution of the marriage by the natural death of the husband. The said Master of Kinnaird is still alive. Further, the pursuer, the said Nadia Alexandra Jardine Fortington, is not entitled to the benefit of any provisions made by the marriage contract except such as have been forfeited by the spouse she has divorced. The Master of Kinnaird could never in any circumstances have enjoyed the said annuity of 200. Accordingly, no forfeiture thereof arose on the divorce that could benefit the said pursuer."
The pursuer pleaded:"(1) The defender being under an obligation in virtue of said antenuptial contract of marriage to make payment to the trustees foresaid of an annuity of 200 sterling per annum as from the 3rd day of September 1940, decree should be pronounced as concluded for. (2) The defences, being irrelevant, should be repelled and decree granted de plano."
The defender pleaded:"(1) The averments of the [pursuer and her mandatary] being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (2) The eventuality contemplated for payment of the said annuity not having occurred, the [pursuer and her mandatary] are not entitled to the decree concluded for. (3) The said annuity not having been forfeited by the husband, the defender should be assoilzied. (4) The said annuity not being a right falling to be taken by the wife in succession to the husband, the defender should be assoilzied."
On 13th November 1941, after hearing parties in the Procedure Roll, the Lord Ordinary (Russell) sustained the defender's first plea in law, and dismissed the action.
At advising on 26th March 1942, the opinion of the consulted judges was delivered by
LORD PRESIDENT (Normand).An obligation undertaken in a marriage contract by one of the spouses to provide, on his or her death, an annuity to the other spouse, if then surviving, is enforceable against the obligant, if the marriage is dissolved by divorce and the obligant is the guilty party. The fiction that the guilty spouse is dead overrides the literal terms of the contract to the effect of rendering the obligation enforceable by the innocent against the guilty spouse, although it is conceived in terms which make it prestable on death. The question in the present case is whether the fiction operates to the like effect when the obligant is not the guilty spouse but some other person, generally, but not necessarily, the father of the guilty spouse. It is essential to note that the type of obligation which gives rise to this general question is not one which provides the annuity to one spouse during the subsistence of the marriage, and, on his or her death, to the other spouse, but an obligation the operation of which is suspended till the dissolution of the marriage by death. It is, accordingly, an obligation which would be more onerous if it were...
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