By an antenuptial contract of marriage the trustees were directed to pay the annual proceeds of the estate conveyed to them by the wife and her father to her, and after her death, in the event of her being survived by her husband, to him, and on the death of both spouses to pay and deliver over the fee or capital to the child or children of the marriage, declaring that if any child should die before the said provision should have been paid or become payable, leaving issue, said issue should have right to their parent’s share.
One daughter was born of the marriage. The marriage was dissolved by decree of divorce in an action by the wife against the husband for desertion. The wife died survived by the divorced husband and the daughter of the marriage.
Held, assuming for the purposes of the case that the fee of the trust estate had vested in the daughter, that in a question as to the daughter’s rights under the marriage-contract, the decree of divorce was not equivalent to the death of the husband; that the fee was not payable to the daughter until the death of the husband; and that the proceeds of the funds during the husband’s survivance fell into the executry estate of the wife.
Opinion ( per Lord Davey) that the fee of the trust estate had not vested in the daughter, there being a destination-over to her issue in the event of her not surviving the period of payment.
Opinion upon this question reserved per Lord Shand and Lord Robertson.
Judges:
Lord Chancellor (Halsbury), Lord Shand, Lord Davey, and Lord Robertson
Citations:
[1903] UKHL 879, 40 SLR 879
Links:
Jurisdiction:
Scotland
Family
Updated: 13 June 2022; Ref: scu.630581