Kennedy v Kennedy's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 17 February 1953 |
| Docket Number | No. 9. |
| Date | 17 February 1953 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Alimentary provisionMarriage-contractFunds provided by husband and wife respectively for alimentary liferent of self and survivor and for issue in feeNo issue or prospect of issue of marriageWhether trustees bound to denude at request of spouses.
The trustees under an antenuptial contract of marriage were directed to hold funds contributed by the husband (a) for payment to him of an alimentary liferent, (b) after his death for payment to his wife, should she survive him, of an alimentary liferent, and (c) after the death of the survivor of the spouses for the surviving issue of the marriage, whom failing for himself or his heirs. There were similar provisions, mutatis mutandis, in respect of other funds contributed by the wife. No children were born of the marriage and the wife reached an age when there was, no prospect that there ever would be children. The husband. and wife having jointly requested the trustees to denude in their favour,
Held that, as the husband had duly constituted an alimentary liferent for his wife, and as the wife had duly constituted alimentary liferents for herself and her husband, these provisions were irrevocablestante matrimonio, and consequently the trustees were not entitled to denude in favour of the spouses.
Beith's Trustees v. Beith, 1950 S. C. 66,distinguished.
By antenuptial contract of marriage dated 9th March 1921 John Kennedy, the husband, conveyed and made over to trustees a fund for the following purposes:"(First) for payment of the expenses of the trust; (Second) for payment of the free income of the fund to the [husband] during his life for his liferent alimentary use allenarly, and after his death to the [wife] should she survive him during her life for her liferent alimentary use allenarly subject to the maintenance of any children of the marriage: under declaration that the same should not be assignable by either the [husband or wife] nor affectable by their debts or deeds or the diligence of their creditors; (Third) after the death of the survivor of the [husband and wife] for the surviving children of the marriage and the issue of predeceasers as the [husband], or, failing him, the [wife], might direct, or equally among them, per stirpes; (Fourth) in the event of the [husband] surviving the Trustees. [wife] and there being no issue of the marriage then alive for delivery of the whole capital of the fund to the [husband]; and (Fifth) in the event of the [wife] surviving the [husband] then on the death of the [wife] and there being no issue of the marriage then alive, for delivery of the capital of the fund to the heirs and assignees whomsoever of the [husband]."
The wife also conveyed a fund to the trustees for trust purposes which were, mutatis mutandis, in similar terms but with a declaration that, in the event of the husband surviving the wife and entering into a second marriage, his liferent should be restricted to one-half of the income of the wife's fund.
In 1952 there were no children of the marriage and the spouses, finding that their income, including the income from the husband's and the wife's funds held by the marriage-contract trustees, was insufficient to maintain the family estate without recourse to capital, with joint consent and concurrence called on the trustees to redeliver to them respectively the funds contributed by them. The trustees being advised that they were not in safety to do so without the authority of the Court, a special case was presented for the opinion and judgment of the Court of Session. The first party was the husband; thesecond party was the wife; and the third parties were the marriage-contract trustees. The parties were agreed that, by reason of the wife's age, there was no prospect that there would ever be any children of the marriage.
The contentions of the parties were stated as follows:
"The first and second parties contend that, upon a sound construction of the said antenuptial contract of marriage and in the circumstances of the case, they are entitled to immediate repayment of the capital of their respective funds; and that the third parties are bound to make such payment to them.
"The third parties contend that, in the events which have happened and although there are no children or any prospect of there ever being children of the marriage, they are nevertheless bound to continue to hold the husband's fund...
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Douglas-Hamilton v Duke and Duchess of Hamilton's Trustees
...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 ......