Taylor, otherwise Joseph v Hossack and Others, Executors of Lieutenant-colonel John Taylor (Deceased)
| Jurisdiction | Scotland |
| Judgment Date | 03 April 1838 |
| Date | 03 April 1838 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 448
FROM THE COURT OF SESSION.
Mews' Dig. xii. 837.
V CLARK & FINNELLY. TAYLOR V. HOSSACK [1838] [380] APPEAL from the court op session. AGNES TAYLOR, otherwise JOSEPH,-Appellant; Dr. JAMES HOSSACK and Others, Executors of LieutehantrColonel JOHN TAYLOR, deceased,-Be-spondents [March 27; April 2, 3, 1838]. [Mews' Dig. xii. 837.] In a marriage contract, the husband covenanted to secure to his intended wife the benefit of the pension or annuity payable from, a certain fund to the widow of a subscriber, " and failing thereof, or in case the said pension or annuity, from whatever cause, shall not be available to his promised wife, excepting only through her right to and possession of property producing the amount of the pension, he bound himself, his executors," etc. to make payment to her of a clear yearly sum equal to the pension. At the time of his death he had secured his wife a pension on the Bombay Military Fund to the amount of 365 a year. From different causes (other than her possession of property producing the amount of the pension) the payment of the pension was at first reduced, and afterwards stopped. held that the contract was an absolute contract to make good the amount of the pension in every case but that of the possession of property producing a similar amount, and that event not having happened, the husband's estate was declared liable. Costs are not given where a,n interlocutor is only varied. In this case, Mrs. Agnes Taylor, otherwise Joseph, had instituted a suit in the Court of Session, calling on the present Respondents, the executors, etc. under her late husband's will, to make good to her certain annual payments which she alleged were secured or [381] intended to be secured to her under the will of her late husband Lieutenantrcolonel John Taylor deceased. The Appellant was the daughter of a Mr. John Forking, of Wellshot, near Glasgow, and in 1822, being at that time a little more than 17 years of age, received proposals of marriage from Major John Taylor, then in the Honourable East India Company's Service. The proposals became the subject of discussion on the part of Mr. Forking a,s to the settlement that was to be made on his daughter. Major Taylor, in a, letter, stating his then present means and expectancies, fully explained himself, and among other means of providing for his intended wife, in case of his death, mentioned a pension that would be payable to her from the Bombay Military Fund, to which he was an original subscriber. In order to render the matter clearer, he sent a copy of the East India Register, which contained an account of the Military Fund referred to in the above-mentioned letter, and in which, under the head of " Abstract of the Regulations," there was the following provision specifically referred to by Major Taylor:-" The widows and legitimate children of deceased officers, whose income may not exceed one-half of the specified pension, shall be entitled to receive the following annuities, viz.: - " Widows during their widowhood, and not otherwise, Of a colonel ------ -456 5 0 Of a lieutenant-colonel or member of the medicail board - 365 0 0 Of a major, senior chaplain, or senior surgeon - 273 15 0 etc." There was in the same Register, and at the same [382] place, the following statement, under the head of " Deductions from widows' pensions:"- " 1st. The amount received from Lord Clive's Fund. " 2d. All income above half the amount of the pensions. " Widows possessing the income specified against the rank of their late respective husbands are precluded altogether from claims upon the fund. 448 TAYLOR V. HOSSACK [1838] V CLARK & FINNELLY- " The widow of a colonel - - - - - 684 7 6 - lieutenant-colonels, etc. ----- 547 10 0 - Major, etc. ------ "0 12 6" Another of the regulations of the Bombay Fund was as follows: - " Should the fund at any period fall short of the demands upon it, so that the annual income will not defray the amount of the annuities and other claims, then it shall be in the power of the directors to make a proportional deduction from the annuity of each annuitant until the state of the funds shall afford the means of complete payment, when if a surplus income exists, the arrears shall be made good from the amount of the surplus, but not otherwise." A formal marriage contract was afterwards executed, bearing date the 2d August 1822, the parties thereto being the pursuer and her father on the one side, and Major Taylor on the other. That contract contained the following stipulations: - " In contemplation of which marriage, the said John Taylor hereby binds and obliges himself, his heirs and successors, to do and perform all and whatever may be necessary and incumbent upon him as a subscriber to the Bombay Military Fund, to secure to his pn [383]-mised wife, in the event of his predeceasing her, the benefit of the pension or annuity payable from the said fund toi the widow of a sub scriber, according to the rank he holds or shall hold in the Company's army for the time; and failing thereof, or in case the said pension or annuity, from whatever cause, shall not be available to his promised wife, in the eivent foresaid, saving and excepting only through her right to, and possession of such separate funds as, by the rules and regulations of the said fund, would exclude her from all benefit thereby, then the said John Taylor binds1 and obliges himself, his heirs, and successors, to make payment to1 the said Agnes Forlong, his promised wife, in the event of her surviving him, of a clear yearly jointure or annuity equal to the pension that has hitherto been paid or shall be payable from the said fund to the widow of a sub scriber holding the same rank in the army which now belongs or shall belong to the said John Taylor at the time of his death, and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment of said jointure or annuity at the first term of Martinmas or Whitsunday that may happen after the said John Taylor's death, and so on thereafter half-yearly during her life:, with the lawful interest of the said termly payments from the time that the same becomes due until payment, and a fifth part of each termly payment, in name of penalty, in case of failure in the punctual payment thereof, besides the payment* themselves; declaring that, in the event, and so long as...
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