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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Charlotte Marchioness Dowager of Annandale v. James Marquis of Annandale. [1722] UKHL Robertson_411 (15 December 1722) URL: http://www.bailii.org/uk/cases/UKHL/1722/Robertson_411.html Cite as: [1722] UKHL Robertson_411 |
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Page: 411↓
(1722) Robertson 411
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 93.
Subject_Provisions to heirs and children — Husband and wife. —
In a contract of marriage with a first wife, a person obliges himself to settle his estate on the heirs of the marriage; by a procuratory of resignation, executed in same terms, he reserved power to grant provisions to a second wife and younger children, on which infeftment followed; and by another deed he afterwards restricted his right of granting provisions to second wife, and children, to the extent of 100,000 l. Scots; After a second marriage, he grants a bond to a second wife for an annuity or jointure of 1000 l. sterling: but made no provisions for children of the second marriage. This second wife in a question with the heir of the first marriage, is declared to have the right to her jointure, till she drew thereout the sum of 100,000 l. Scots.
Subject_Registration. —
A deed restricting an unlimited power of granting provisions to a second wife and younger children, which unlimited power was contained in infeftments upon record, is found valid, though not registered, in a question between the heir and a second wife.
By the marriage-contract in 1686, between William Marquis of Annandale, and Sophia Fairholme his first wife, in consideration of the marriage, and of 80,000 merks Scots paid down for the lady's portion, the Marquis obliged himself to settle all the lands he was then seised or possessed of, in favour of himself, and the heirs male of the marriage, and that the said heirs male should succeed to him in his honours and dignities, and in all and
Page: 412↓
On the 15th of March 1715, the Marquis executed a deed, reciting the settlement of 1690, and the clause therein contained, reserving power to make provisions for the wives and children of future marriages, which proceeds thus:
“And now seeing we are resolved further to explain the clause of provision above narrated, and to signify our pleasure thereanent; and to determine how far we think fit to extend the aforesaid reserved faculty of providing the haill other children of this present marriage, or for the provision of haill other children and wives of subsequent marriages: Therefore,” &c.
“Wit ye us to be bound, like as we by these presents bind us, not to exercise the foresaid faculty to a further extent than 100,000 l. Scots, to haill other children procreate, or to be procreate of my body in this present marriage, or for the haill provisions in favour of the haill children or wives of subsequent marriages; to which sum of 100,000 l. money foresaid, the indefinite faculty above narrated, of providing the haill other children aforesaid is expressly hereby restricted.” The deed of restriction was not registered, but was kept by the Marquis in his own custody.
Marchioness Sophia died in December 1716, and in 1718 the said late Marquis intermarried with the appellant, the daughter of Mr. Vanden Bempde, his second wife. No contract or settlement was made upon this second marriage, but the late Marquis on the 20th of February 1719, granted an heritable bond of provision to the appellant for a life-rent of 1000 l. sterling per annum issuing out of his estates, during her life; upon this she was infeft on the 6th of March following, and her seisin duly registered.
The late Marquis dying upon the 14th of January 1721, and the respondent his eldest son and heir refusing to pay the said life-rent of 1000 l. sterling per annum to the appellant, she brought a process before the Court of Session for poinding the ground. The respondent and his tenants appeared, and made defences; and the Court on the 15th of February 1722, “Found, that the late
Page: 413↓
The appellant reclaimed against this interlocutor, praying that at least her life-rent provision should subsist till she drew out of it the sum of 100,000 l. Scots: but after answers for the respondent, the Court on the 27th of February 1722, “Adhered to their former interlocutor, and found, that by the deed of restriction made by the late Marquis in 1715, the faculty reserved by him in the writ of tailzie made by him in the year 1690, was in all events restricted to 100,000 l. Scots for provisions to a second lady and younger children, and that the appellant's interest herein cannot exceed the annual rent of the said sum of 100,000 l. Scots.”
The appellant brought this interlocutor under review, and stated that as the restriction was not to be discovered upon the record, it could have no effect against her: the respondent made answers, and the Court on the 26th of June 1722 “Adhered to their former interlocutor, and found that the aforesaid restriction, though not registered, is effectual both against the Marchioness and her children.”
Entered 12 Oct. 1722.
The appeal was brought from “several interlocutors and decrees of the Lords of Session of the 15th and 27th of February, and 26th of June 1722.”
Heads of the Appellant's Argument.
The late Marquis was no further bound by the contract of marriage of 1686, than that the estate should descend to the respondent as his heir, and that he should not institute another heir, or dispose of that estate to a third party, without an onerous consideration. But the late Marquis still had an absolute power of charging the estate with debts at pleasure, and might have sold the whole or any part of it for a valuable consideration; and the respondent, the heir of that contract, would have been obliged to fulfil and make good, not only all deeds done for valuable considerations, but also all rational deeds done by the Marquis touching that estate. The jointure given to the appellant was no fraudulent deed, nor done with intention to disappoint the respondent's succession, but was rational and suitable to the Marquis's quality; and marriage has always been looked upon in law as a valuable
Page: 414↓
The deed of restriction 1715, can never be understood to relate to the Marquis's power of providing a life-rent or jointure for a wife; it appears that he only meant to restrict the faculty of providing for children; and though the word wives is thrown in, in a very strange manner, it must have been done either per incuriam of the writer, or from a belief that the late Marquis had a power to give a provision in money to a wife, over and above her jointure; and, therefore, the Marquis is restricted that he shall not charge the estate with a sum of money to a wife and children above 100,000 l. Scots. Besides, this life-rent is but a suitable provision, nowise exorbitant for the Marquis's widow, who has also two sons by him unprovided for.
The deed of restriction can have no effect against the appellant, as it was not recorded in the register of reversions, but kept up as a latent deed to ensnare creditors or a second wife; and no notice was given to the appellant before her marriage, nor before her infeftment was taken and recorded upon her life-rent. The argument here is the stronger, because the Marquis's power being constituted by infeftment, it could not be taken away, but by a renunciation duly registered.
Under the late Marquis's contract of marriage with his first wife, the appellant would have been entitled to her terce, if no settlement had been made upon her, which would not have fallen much short of the life-rent: and even by the deed of restriction the late Marquis had power to charge the estate with 100,000 l. Scots for provisions for his second lady and issue; and the Marquis having made no other charge than the life-rent, the appellant must in the worst event be thereby entitled to the said 100,000 l. Scots, or the life-rent, till that sum with interest be exhausted, which may equal if not exceed the life-rent.
In the progress of this action, the appellant prayed to have some aliment pending the action, which the Court refused her; so that she has had no maintenance for herself and two children out of the late Marquis's estate, since his death.
Page: 415↓
Heads of the Respondent's Argument.
The respondent as heir of provision by his mother's contract of marriage in 1686, is so far from being liable to perform all his father's deeds, that he as creditor to his father under that contract has an undoubted right in law to reduce all voluntary deeds, especially unreasonable provisions for a second wife and her children, in prejudice of his succession, which was settled in consideration of his mother's fortune.
In the contract of marriage 1686, there is no power expressly reserved to the late Marquis to make any provision for the wife or children of a subsequent marriage, nor was it necessary, because the fee being then in himself, under an obligation to resign in favour of the heirs male of that marriage, he had by law a power to make a reasonable provision for the wife and children of a second marriage, with due regard to the estate and circumstances of the family, and the portion which such second wife might bring. But he had not power to make a settlement to what extent he pleased; for every such settlement is by the undoubted principles of the Scots law reduceable by the judges to an equitable proportion, wherein the greatest regard is always had to the interest of the heir of the first marriage, and the fortune of his mother. But in the settlement of 1690, when the late Marquis divested himself of the fee, and resigned the same to the respondent, it was necessary to reserve an express power of making provision for the wife and children of a subsequent marriage, for otherwise he would have been absolutely barred for ever. But he could not by his own deed create a new power, or reserve to himself more than he was entitled to by law at the time of such resignation; and therefore the reserved power in the deed being indefinite, must be construed to be only such a power as he had by law before.
The respondent's acceptance of the settlement 1690, appears only by a deed of the 26th March 1715, which was not executed till after his father had by his deed of the 15th of same month, expressly restricted his power to the sum of 100,000 l. Scots.
The power reserved by the settlement 1690, being only personal, needed not to have been registered, but happened to be so by accident, being recited in the instruments consequent upon the procuratory of resignation, which were necessary to be registered: and as the reservation of the power itself, and the exercise of it by any personal deed, would have been effectual without registration; so the restriction of it by the deed 1715, was valid though not registered; and though such powers, or the exercise or restriction of them be not registered, it can be of no ill consequence to purchasers for a valuable consideration, since they must know that such deeds need not be registered. It is well known in the Scots Law, that several rights on record can be avoided by personal bonds or receipts, though not upon record, such as adjudications and heritable bonds upon which infeftment has followed. There
Page: 416↓
But whatever claim a creditor for a valuable consideration might pretend, in the present case there can be no such question; here there was no settlement before marriage, the appellant took her hazard of the legal provisions; nor was there any portion paid to entitle her to be a purchaser for a valuable consideration, and she can claim no more than what the Marquis could voluntarily give: he could certainly never extend that provision beyond the powers he had by law, and the limits he had given to himself in the explanatory or restricting deed.
It is plain from the words of this deed, 1715, that the Marquis meant to extend the restriction to provisions to wives, as well as to children. In several places of it the Marquis mentions his design to restrict his power of providing for younger children, and wives of subsequent marriages to 100,000 l. Scots.
By the uniform practice and construction of the law of Scotland, where any sum of money is set aside, or appointed for a wife and children, the wife's interest in that sum is different from the childrens': the interest of the children extends to the fee; and the interest of the wife to the life-rent only; so that the provision in the deed of restriction 1715, has the same effect in law, as if the power reserved to the late Marquis had been in express words to provide the life-rent or interest of 100,000 l. Scots to the wife, and the fee of that sum to the children. If a person in the disposition of his estate to his eldest son, reserve a faculty in case of a future marriage, to settle one of the baronies disponed for the provision of a wife and children of a subsequent marriage, no one will imagine, that this reservation would enable him to dispose of the fee of such barony to the wife, or to give her any other interest in it than a life-rent; and the power reserved to the late Marquis by the deed 1690, to make provision for a subsequent wife, was only by a life-rent, though not restrained to a certain sum; and the deed 1715, only restrains such powers reserved by the deed 1690, to a certain sum, but does not change or alter the nature of them.
Judgment, 15 Dec, 1722.
After hearing counsel, It is ordered and adjudged that the said interlocutor of the 15th of February, complained of in the said appeal, and so much of the said two other interlocutors as affirm the first interlocutor be reversed: And it is further ordered and adjudged, that so much of the interlocutor of the 26th of June, whereby the Lords of Session, found that by the said deed of restriction made by the said Marquis of Annandale, the 15th of March 1715, though not registered is effectual against the appellant and her children be affirmed: And it is further ordered and adjudged, that so much of the interlocutor of the 27th of February, whereby the Lords of Session founds “ that by the said deed of restriction made by the said Marquis in 1715, the faculty reserved by him in the writ of tailzie, made by him in the year 1690, was in all events restricted to 100,000 l. Scots, for provisions
Page: 417↓
Counsel: For Appellant,
Rob. Raymond.
Ro. Dundas.
For Respondent,
Dun. Forbes.
C. Talbot.
Will. Hamilton.
