Scott v Scott
| Jurisdiction | Scotland |
| Judgment Date | 27 June 1930 |
| Date | 27 June 1930 |
| Docket Number | No. 114. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Fleming.
TrustRevocationInter vivos disposition to trustees by husband in contemplation of divorce by his wifeDirections to trustees to hold for granter in liferent and for any future wife and children in feeDestination-over to named beneficiariesDeclaration of irrevocabilityWhether granter irrevocably divested.
Husband and WifeRights arising on dissolution of marriageDivorceLegal rightsTerce and jus relictIrrevocable disposition by husband to trustees to hold estate for him in liferentSubsequent decree of divorce in favour of wifeWhether wife entitled to terce and jus relict out of liferent.
A husband, in contemplation of an expected action of divorce by his wife, conveyed his whole estate to trustees, with a direction to hold the estate for himself and for any future wife he might marry in liferent, and thereafter to pay the capital to any children he might have in fee; and, failing children, to pay, on the death of the surviving liferenter, certain "legacies" and the residue of his estate to named beneficiaries, under a declaration that the "legacies" and shares of residue should vest only at the date of payment. The deed contained the following declaration:"I declare these presents to be irrevocable; and I oblige myself that I shall do no act inconsistent therewith."
The granter's wife subsequently divorced him. There was no issue of the marriage. She thereafter brought an action concluding for declarator that, on the dissolution of the marriage, she became entitled to terce and jus relict out of his estate. It was conceded in the action that the deed of trust above referred to was granted with the object of defeating the wife's legal claims arising upon divorce.
Held (1) (rev. judgment of Lord Fleming,diss. Lord Morison) that the deed of trust was irrevocable, in respect that, while the trust purposes were consistent with either an irrevocable or a testamentary intention, the declaration of irrevocability, coupled with the object of the deed, showed that the granter's intention was to divest himself irrevocably; and (dub. Lord Blackburn) that the pursuer was, accordingly, not entitled to terce or jus relict out of the capital of the trust-estate; but (2) (diss. the Lord President) that the pursuer was entitled to terce and jus relict out of the liferent payable to her husband under the deed of trust, in respect that it constituted estate belonging to him at the date of the divorce, and that the pursuer's legal claims thereon did not fall to be estimated on the hypothesis that he had died at that date.
On 28th December 1928 Mrs Vera Ethel Vogt or Scott, formerly wife of Roderick Haig Scott, residing at "Mogador," Thorntonhall, Lanarkshire, whom she had divorced, brought an action concluding for declarator that, on the dissolution of the marriage between her and Roderick Haig Scott by decree of divorce obtained by her on 24th November 1928, she became entitled to her legal provisions of terce and jus relict out of the estate then belonging to him; that the said estate included the share of the estate of the late Roderick Scott bequeathed, under his trust-disposition and settlement, to Roderick Haig Scott; and for an accounting, or for payment of 17,000. She called as defenders (first) Roderick Haig Scott, (second) the trustees acting under the trust-disposition and settlement of the late Roderick Scott, the father of Roderick Haig Scott, and (third) the trustees acting under a deed of trust granted by Roderick Haig Scott, dated 18th May 1928. Defences were lodged by all the defenders.
The facts of the case as averred by the parties were as follows:The pursuer was married to the first defender on 9th November 1923; he deserted her in April 1924, and she obtained a decree of adherence and aliment against him. On 13th September 1928 she brought an action of divorce on the ground of his desertion. Decree of divorce was granted in her favour on 24th November 1928. There were no children of the marriage. Roderick Haig Scott was possessed of estate amounting to between 30,000 and 40,000, the greater part of which consisted of estate bequeathed to him under the trust-disposition and settlement of his father, the late Roderick Scott, who died in 1922. In terms of Roderick Scott's settlement, his trustees were empowered in their discretion either to pay over the estate to Roderick Haig Scott, or to apply it for his behoof. They averred that, in May 1928, they paid over to Roderick Haig Scott the trust-estate which they had retained in their hands, conform to discharge in their favour by Roderick Haig Scott, dated 14th May 1928. On 18th May 1928 Roderick Haig Scott granted a deed of trust, by which he conveyed his whole estate to certain trustees, under the following declaration:"I declare these presents to be irrevocable; and I oblige myself that I shall do no act inconsistent therewith."
The purposes of the trust were as follows:"The trustees shall hold, administer, and apply the said means and estate for the following purposes, videlicet:(First) That I may, during my life or for such length of time as I may desire, have the right of occupancy of the dwelling-house known as Mogador, Thorntonhall, with the liferent use and enjoyment of the whole household furniture, plenishing, and household effects of whatever description, which right of occupancy and liferent use of said furniture and effects shall not be assignable by me or capable of delegation, it being, however, understood that, should the trustees at any time consider it advisable and expedient to sell the said dwelling-house, my occupancy will cease as from and after the date of the purchaser's entry; (Second) The said trustees shall, during my life, and after my death, during the life of any wife I may hereafter marry, apply the free income of the said trust-estate for the maintenance and support of myself and that of any such future wife and my lawful children (if any) and the issue of children who may predecease the period of capital payment as after mentioned, and for the suitable education and upbringing of such children and issue, and such income shall be applied by the trustees paying the same direct to myself or to such future wife or children, in such sums and at such intervals as they think fit and find convenient, or in such other way and at such times as the trustees shall deem expedient; and it is hereby expressly provided and declared that the whole of the provisions before written in the second place shall be strictly alimentary and shall not be assignable by the persons participating therein or attachable by the diligence of their creditors; (Third) Upon the death of any such future wife, should she survive me, or upon my death, should she predecease me, the said trustees shall pay and convey the whole free trust-estate remaining in their hands to my children (if any) then surviving and the issue of any children who may predecease the period of payment, such issue takingper stirpes equally among them the share which the parent would have taken by survivance; Declaring that the share of such issue shall be payable to each individual on his or her attaining majority, and, pending payment, the income thereof shall be applied by the trustees in or towards the maintenance, education, and upbringing of such issue to such extent and in such manner as the trustees shall think proper; With power to the trustees at any time during the subsistence of this trust, whether before or after my death, to apply the capital of the trust-estate in making payment to any child for the purpose of starting a son in business or fitting out a daughter in marriage, but of the expediency of such payments, and the amount thereof, the trustees shall be the sole judges, and any such payments so made shall be placed to account of the share of the child receiving them, but shall not be a debt by such child; (Fourth) If upon my death, or subsequently, there be no heir of my body under the immediately preceding clause, the trustees shall hold the trust-estate for the liferent alimentary use allenarly of any future wife whom I may marry, but that to the extent only of one-half of the free revenue of the estate, and said revenue shall be payable in such manner and at such times as the trustees shall find it convenient; And as regards the remaining half of revenue, the same shall be allowed to accumulate during the lifetime of such future wife, but under the declaration that should the trustees at any time consider it necessary and expedient, they should be entitled to encroach upon such accumulated revenue for any special purpose for behoof of such future wife, but if [sic] the expediency whereof the trustees shall be the sole judges, and whatever portion may remain of such accumulated revenue shall eventually be added to and form part of the general estate to be disposed of as hereinafter provided; (Fifth) Failing me being survived by any such future wife or lawful issue, or of any lawful issue all predeceasing the term of payment, the said trustees shall hold, administer, and apply the said means and estate, including accumulations of revenue, if any, for the following purposes,videlicet:(Firstly) For payment, at the first term of Whitsunday or Martinmas occurring six months after my death, of the legacies to the persons after named, all free of legacy and other Government duties; (First) To my uncle Andrew Scott, the sum of One thousand pounds sterling; [Then followed a list of payments termed legacies, and directions for the distribution of the residue of the estate, among named beneficiaries.] Declaring that the said legacies and shares of residue shall be paid to the beneficiaries only upon their respectively attaining the age of twenty-one years complete, and the said shares shall vest in them only upon their respectively surviving the said term of payment."
The pursuer also made averments, with which this report...
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