Sawrey-Cookson v Sawrey-Cookson's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 28 November 1905 |
| Date | 28 November 1905 |
| Docket Number | No. 23. |
| Court | Court of Session |
Lord Ardwall, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
TrustMarriage-TrustForeignHusband and WifeWife's capacity to revokeTrust-Deed executed by Scotswoman in contemplation of English marriageSubsequent acquisition of English domicile by marriage.
A Scotswoman, in contemplation of marriage with A, a domiciled Englishman, executed a unilateral trust-deed, making a settlement of her whole property. The deed was in Scots form, it contained provisions consistent only with the law of Scotland, and two out of the three trustees were Scotsmen. She subsequently married A, and acquired an English domicile.
In an action by her against the trustees for declarator that she was entitled to revoke the trust-deed, held (1) that the deed was a Scots deed, and that the question whether it was sua natura revocable must be determined by Scots law; (2) on the authority of Watt v. WatsonSC (24 R. 330), that had the granter remained a Scotswoman she could have revoked the deed; (3) that the question whether as a married woman domiciled in England she had capacity to revoke it must be determined according to the law of England; and consequently (4) that an averment made by the defenders that by the law of England the effect of marriage is to incapacitate a wife from revoking rights created by her by any unilateral deed in contemplation of the marriage was relevant, but that the inquiry as to the law of England must be limited to the question of the wife's capacity to revoke, and should not include any question as to the revocable nature of the deed in itself.
Marriage-ContractForeignMarriage of domiciled Scotswoman to domiciled EnglishmanRatification by wife in England of antenuptial Scots Deed.
A married woman, who had acquired an English domicile, executed in England a ratification of a Scots trust-deed executed by her in Scotland before her marriage while still a domiciled Scotswoman. Held that the deed of ratification was an English deed, and that the law of England must be applied to in order to discover its effect as a ratification and its nature as a revocable or irrevocable deed.
On 5th June 1890 Miss Catherine Anna Stirling, afterward Mrs Sawrey-Cookson, who was then a domiciled Scotswoman, with the special advice and consent of her father as her guardian, curator, and administrator-in-law, she being at the time a minor nineteen years of age, executed a trust-conveyance and settlement, which bore to be in contemplation of my approaching marriage to James Freville Rawlinson Sawrey-Cookson. By this deed she assigned and disponed to certain trustees the whole means and estate, with certain minor exceptions, then belonging to her or to which she might acquire right during the subsistence of the intended marriage, but reserving to me power at any time or times to ask and receive from my trustees, provided they approve thereof and consent thereto, on my own receipt, a payment or payments out of the capital of my said means and estate hereby conveyed of a sum or sums of money not exceeding in the aggregate 2000 as my own absolute property, exclusive of my said intended or any future husband. The purposes of the trust were (1) payment of the expenses of the trust; (2) payment of the income to the granter during her life; (3) payment of the income to her intended husband should he survive her during all the years of his life for his alimentary use only; (4) on the death of both spouses payment of the fee to the child or children of the marriage in such proportions as the granter might direct; (5) on the death of the husband, should he survive the granter, in the event of there being no issue of the marriage then alive, and of the granter having died intestate, payment of the fee to my own legal representatives whomsoever, according to the law of Scotland; and (6) in the event of the husband and all the issue of the marriage, if any, dying in the granter's lifetime, reconveyance to her of the whole means and estate. The provisions in favour of the husband and children were declared to be in full of all claims competent to them under the Married Women's Property (Scotland) Act, 1881, or under any other statute or at common law; the jus mariti and husband's right of administration were excluded; all liferent provisions were declared to be alimentary and not assignable or affectable by debts or deeds; the trustees were empowered to appoint any one of their own number factor or law-agent, and, in their discretion, to purchase a residence for the spouses in Scotland or England; and there was a consent to registration for preservation. There was no clause declaring the deed to be irrevocable. It was executed at Edinburgh in Scotch form. The trustees nominated in the deed were the granter's father, Richard Stirling, who was a domiciled Scotsman, her brother-in-law, Thomas Archibald Warnock, who was a domiciled Irishman, and Mark Bannatyne, solicitor, Glasgow, who was her father's law-agent, and all of them accepted office. The whole trust-estate consisted and continued to consist of moveable funds, and amounted at the date of the deed to about 17,000.
On 31st July 1890 Miss Stirling was married to Mr Sawrey-Cookson, who was a domiciled Englishman, and took up residence with him in England.
In or about May 1892 Mrs Sawrey-Cookson applied to the trustees for a payment out of capital, under the reserved power to advance 2000, and received from them 500. About the beginning of 1894 she pressed the trustees for a further payment, and eventually the trustees agreed to advance her the balance of the 2000 on her executing a ratification of the before-mentioned trust-conveyance. After considerable negotiation she consented to this proposal, the balance, amounting to 1500, was advanced to her, and on 17th March 1894 a receipt and ratification was executed by her and her husband in the terms quoted below.* This deed was prepared in
Scotland by the law-agents to the trustees, but was executed in London in English form.
Mrs Sawrey-Cookson's father, Mr Stirling, died on 25th July 1903. One child only was born of the marriage, but died in 1903.
On 3d November 1904, Mrs Sawrey-Cookson and her husband, as her curator and administrator-in-law, and for his own interest, raised an action against the surviving trustees under the trust-conveyance, concluding (1) for reduction of the said trust-conveyance, and also of the before-mentioned receipt and ratification, and (2) for declarator that the said trust-conveyance was revocable by Mrs Sawrey-Cookson, at least with her husband's consent, and that she was entitled to revoke it accordingly, and, further (3) for declarator, that on the said trust-conveyance being revoked the whole means and estate thereby assigned, so far as remaining in the hands of the trustees, was the sole and absolute property of Mrs Sawrey-Cookson, free from the provisions of the trust-conveyance, and that the trustees were bound to re-invest her in the said estate.
The averments in support of the reductive conclusions sufficiently appear from the opinion of the Lord President.
With respect to the revocable character of the two deeds, the parties had the following averments and pleas, the portions here printed in italics being added by way of amendment in the course of the debate in the Inner-House.
The defenders averred:(Cond. 10) Explained that the trust-deed was executed by the pursuer Mrs Cookson in contemplation of her marriage with a domiciled Englishman, and that the revocability, of said deed falls to be decided by the law of the matrimonial domicile, videlicet,the law of England, according to which, such a unilateral settlement made by a wife prior to, and in contemplation of, marriage, is, after the marriage, irrevocable by either or both of the spouses. In any event, on her marriage and subsequent acquisition of an English domicile, Mrs Cookson, by the laws of that country, became incapable of affecting or revoking the said trust-deed, either with or without the consent of her husband. By the law of England the effect of marriage is to incapacitate a wife from affecting or revoking, even with the consent of her husband, rights already created by her by any unilateral deed of settlement in contemplation of the marriage. The trust-deed by Mrs Cookson thus became irrevocable by her marriage. Further, the meaning and effect of the receipt and
ratification fall to be decided by the law of England, which was the lex domicilii et loci actus, and according to which a voluntary or contractual postnuptial settlement by one or both, respectively, of the spouses, or a postnuptial settlement in pursuance of ineffectual antenuptial marriage articles are all irrevocable at the instance of either or both of the spouses. The said ratification was thus irrevocable.
The pursuer answered:(Cond. 10) The statements in answer are denied so far as not coinciding herewith. With reference to the explanations in answer, it is denied that the deeds in question, or either of them, fall to be construed, or their meaning and effect determined, by the law of England. Not known and not admitted that the law of England is to the effect stated. With reference to the defenders' averments, added by way of amendment, it is denied that the law of England is to the effect stated, or at least has any such effect in cases where the deed sought to be ratified either contains a clause of revocation, or is otherwise revocable at the will of the granter, or is truly testamentary in character.
The pursuers pleaded, inter alia;(4) The pursuers are entitled to decree of declarator as craved, in respect(a) said trust-conveyance and settlement was, and is, revocable by the pursuer, at least with her husband's consent; and (b) the nature and effect of said trust-conveyance, and the pursuer's right to revoke the same, were in no wise affected by Mrs Cookson's marriage, or by her...
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