Scottish Court of Session Decisions

Joseph Hamilton Fowler and Catherine Mann were married on 4th October 1893. By antenuptial contract of marriage Mr Fowler bound himself to pay an alimentary annuity of £500 to Mrs Fowler in the event of her surviving him, and in security pro tanto thereof conveyed to trustees a policy of insurance on his life for £2000. On her part Mrs Fowler conveyed to the trustees five investments of the value of £3538 or thereby, and all other means and estate that belonged to her or might be acquired by her during her marriage, with the exception of money then deposited in the bank in name of Mrs Fowler, and a sum of £15,000 bequeathed under her father's will to her in liferent and her children in fee. The following provisions were applicable to the estate so conveyed by Mrs Fowler. The proceeds were to be paid to her during her life for her alimentary use on her own receipt and outwith the jus mariti and right of administration of her husband. In the event of Mrs Fowler predeceasing Mr Fowler the nett yearly income was to he paid to the latter for his own maintenance and that of the children, and on the death of the last survivor of Mr and Mrs Fowler the trust estate was to be divided among the children in such proportions as Mrs Fowler might appoint by writing, failing such writing in such proportions as Mr Fowler might appoint by writing after his wife's decease, and failing any writing, equally. Power was given to the trustees, in the ninth place, to pay over any part of the funds of the trust-estate in terms of the fourth purpose of the deed. This fourth purpose was in the following terms:—“If during the subsistence of the said marriage the said Catherine Mann shall, by a writing or writings under her hand, require the said trustees to do so, they shall be bound to pay over to her, for the purpose of purchasing a dwelling-house or residence for herself and her said intended husband and their family, and furnishing the same, or for any other purpose, such amount of the trust funds in their hands as shall be specified in such writing or writings, and if a house shall be purchased and furnished from the money so to be paid, the title thereto shall be taken in favour of the said trustees, and the same shall form part of the trust-estate.” The following was the eighth purpose of the deed:— “In the event of the said Joseph Hamilton Fowler predeceasing the said Catherine

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Mann, it shall be lawful to and in her power to require the said trustees to reconvey to her as her absolute property the whole trust-estate then vested in and held by them, and on being so required they shall be bound to do so, and the said Catherine Mann shall be bound to discharge them of the trust, which shall then cease and determine.”

There were two children of the marriage born on 17th August 1894 and 4th October 1895.

By letter of request dated 19th February 1894 Mrs Fowler, with consent of her husband, required the trustees to realise three of the investments specially conveyed by her in the marriage-contract, and to pay her the proceeds, the purpose assigned for such a request being that she wished to employ the money in such a manner as to increase her income. These investments were sold, and the proceeds—viz., £818, 17s. 7d.—paid over to her.

By letter of request dated 28th June 1895 Mrs Fowler, with consent of her husband, required the trustees to realise another of the investments so conveyed by her, and to pay her the proceeds, the letter of request bearing that the money was required by her to be expended mainly in furnishing a house, buying a new carriage and horse, and in giving her husband assistance in procuring a partnership in a business in Greenock. This investment was sold for £2707, 8s. 3d., and the proceeds paid to Mrs Fowler.

A house known as Carlogie was bought by Mrs Fowler, with entry at Whitsunday 1896, the price paid being £1800. The title was taken in Mrs Fowler's name. In order to meet the balance of the price and certain expenditure in connection with furniture and furnishings, £1000 was borrowed upon the security of the house, under bond and disposition in security granted by Mr and Mrs Fowler. In addition to this expenditure on house and furniture Mr and Mrs Fowler built a stable and coach-house, and painted and papered the house and furnished the same complete at a cost of £1000, no part of which was paid. By disposition dated 10th, and recorded 12th December 1896, Mrs Fowler, with consent of her husband, disponed the house, subject to the bonds upon it for £1000, to the trustees under the marriage-contract in implement of the terms thereof, and also assigned to the trustees the whole household furniture and plenishing in the house.

Thereafter proceedings were taken by creditors to enforce payment of claims against Mr and Mrs Fowler. An arrangement was entered into by which it was proposed to apply the available funds of the spouses in payment of their debts, and Mr and Mrs Fowler were desirous of having the proceeds of the house and furniture, and the remaining investment conveyed by her to the trustees in the marriage-contract, made available for the purposes of this arrangement.

By letters of request dated 17th June and 12th October 1897, Mrs Fowler, with consent of her husband, made application to the trustees to sell the house and furniture and the said investment and pay over the proceeds to her, the purpose assigned being “to get the liabilities incurred by her husband and myself (largely in connection with the house) discharged.”

The trustees sold the house with offices and pertinents for £1900, and were prepared to sell the furniture, but were in doubt whether they could safely pay over the proceeds thereof and of the said investment to Mrs Fowler.

For the decision of the question a special case was presented to the Court by (1) the marriage-contract trustees (2) Mr and Mrs Fowler, and (3) the children.

The question at law was—“Are the trustees under the said contract of marriage entitled and bound, in compliance with the request made by Mrs Fowler, to pay over to her absolutely the proceeds of the whole remaining trust-estate settled by her, including the house known as Carlogie, with offices and pertinents, and furniture and furnishings therein, or of any and what part of the said estate?”

Argued for the first and third parties— Mrs Fowler's powers had been exhausted by the payments which she had already received from the estate, and separately, the house and furniture were not subject to these powers, in respect that it was provided in the marriage-contract that the title was to be taken in favour of the trustees, and that Mrs Fowler having elected to buy, and having bought, a house, and the same having been vested in the trustees, the trustees were entitled and bound to continue to hold it as a trust-estate. Further, Mrs Fowler's powers did not go the length of defeating the trust altogether by exhausting the trust assets, which would be the result if her present request were complied with.

Argued for the second parties—(1) By the fourth purpose of said marriage-contract no limit was placed on the amount which might be demanded by Mrs Fowler for the purpose to which the money might be applied. (2) By the ninth power the trustees were specially empowered to pay any part of the trust-estate in terms of the fourth purpose. (3) The £1300 which helped to purchase the house was payable to Mrs Fowler in terms of her request of June 1895, and was therefore her own absolute property, free from the trustees' control, and she acted voluntarily in arranging to transfer, and in subsequently transferring the house and furniture to them.

At advising—