In an antenuptial marriage-contract the wife conveyed a sum of pounds 4000 to trustees. The deed provided that in the event of the marriage being dissolved by the predecease of the wife leaving children, the husband should have an alimentary liferent of this fund, that after his death the capital should be paid over to the children of the marriage on their attaining majority, and that if there were no children alive at the dissolution of the marriage, or should they all die before the terms of payment of their provisions as aforesaid, the husband should continue to have the liferent of the fund during his life, but that the whole capital should be subject to the wife’s disposal by will. In the parallel clause which dealt with the event of the husband predeceasing the wife, it was provided that the wife should have an alimentary liferent of the fund; that after her death the interest was to be applied for behoof of the children during their minority, and that on their attaining majority the capital was to be paid to them, but subject to the declaration that if ‘such children should all die before their mother, or . . should they all die before attaining majority, and without leaving issue of their own bodies,’ the fund should continue to be held for the alimentary liferent of the widow; and it was further declared that in the event of the wife surviving her husband, and of the failure of issue of the marriage, she should have the right to test on the capital. It was expressly provided that the provisions to children should not be payable, or become vested interests, or be transmissible by them until after the death of the longest liver of the spouses, and until the children attained majority.
The marriage was dissolved by the predecease of the wife, who was survived by one son, and left a will in which she made over all she possessed to her husband.
In an action by the husband and son for payment upon their joint discharge of the pounds 4000, held (rev. judgment of the First Division) that the trustees were bound to maintain the trust, not only for the protection of the husband’s alimentary liferent, but also for the possible issue of the son.
Lord Chancellor, Lord Watson, Lord Herschell, Lord Macnaghten, Lord Morris, and Lord Hannen
[1892] UKHL 911, 29 SLR 911
Bailii
Scotland
Updated: 29 July 2021; Ref: scu.634558