A husband and wife, on the narrative that their antenuptial contract had become unsuitable, executed a postnuptial contract, whereby the husband bound himself and his heirs, in the event of his predecease, to make certain provisions for his wife, who accepted thereof in satisfaction of her legal claims, and further gave, granted, and disponed from her, her heirs and successors, to her husband and his heirs and assignees whomsoever, her whole estate real and personal now belonging to her or that might belong to her at the time of her death. She bound herself to infeft and seise her husband and his heirs and assignees in the heritable property so disponed, and she empowered her husband to uplift and discharge the whole estate, and appointed him to be her sole executor and universal legator. Further, she constituted her husband and his foresaids her assignees to the rents and duties of the said lands and others ‘from and since the term of Whitsunday last, which is hereby declared to have been the term of the said husband’s entry to the said subjects, and in all time coming, surrogating hereby and substituting the said husband in her full right and place of the premises for ever.’
The parties reserved power to alter the contract.
Under her grandfather’s will the wife was entitled to a share of the residue of his estate, which was secured to her in liferent (exclusive of the jus mariti), and in fee to anyone whom she might appoint by a writing under her hands.
The husband predeceased, having conveyed his whole estates to trustees.
The First Division found that the wife had validly exercised her power of appointment over the share of the residue of her grandfather’s estate by the general conveyance in her postnuptial contract, and this decision was not questioned.
But held ( rev. the decision of the First Division) that the postnuptial contract was not of a testamentary character, but rather a deed of contract granting to each of the parties the right of a creditor, which vested at once, and therefore that the wife’s share of residue which had been conveyed to the husband was carried by his disposition, and now vested in his trustees.
Judges:
Lord Chancellor (Halsbury) and Lords Watson, Bramwell, and Herschell
Citations:
[1890] UKHL 1014
Links:
Jurisdiction:
Scotland
Family
Updated: 23 June 2022; Ref: scu.636727