Magistrates of Montrose, and Ewen's Trustees v. Elizabeth Ewen [1825] UKHL 1_WS_595

UKHL
Magistrates of Montrose, and Ewen's Trustees v. Elizabeth Ewen
[1825] UKHL 1_WS_595
Clause held (reversing the judgment of the Court of Session) to import a discharge by a daughter of all the rights competent to her as heir of provision under the postnuptial contract of her father and mother.John Ewen , a person of obscure parentage, commenced business in Aberdeen as a pedlar—then kept a stall, and latterly opened a shop there. In 1766, while his means were believed to be very scanty, he married Janet Middleton. By postnuptial contract of marriage, she conveyed to him her pro indiviso share of certain houses left by her father, and liferented by the mother; a bond for L. 100, also liferented by her mother; and her share of her father's household furniture, valued at L. 43. 7s. On the other hand, Ewen, “in consideration of the said marriage, and of the disposition and assignation before-written conceived in his favour, hereby, for him, his heirs, executors, and successors, and assignees, assigns, conveys, and dispones to and in favour of the said Janet Middleton, his spouse, her heirs and assignees whatsomever, in case she survive him, all and haill his whole goods, gear, merchant-ware, and effects, of whatever kind, quality, or

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On 19th October 1821, two days before his death, John Ewen executed a trust-disposition, whereby he left to his daughter an annuity of L. 40 per annum, to her only son L. 525, a few small legacies to other parties, and conveyed the residue of his fortune to trustees to endow an hospital in Montrose. His property (chiefly moveable) amounted to about L. 16,000.Thereupon Elizabeth Ewen raised an action of reduction of the postnuptial contract containing the discharge, and of the trust-disposition by John Ewen, and concluding that they should be reduced, and that she might be reponed and restored against them in integrum. This was resisted by the trustees, who alleged, that the sum given by Ewen to his daughter and son-in-law in consideration of the discharge, was fairly calculated, according to the real amount of his pecuniary finances at the date of the deed. On the other hand, it was as broadly alleged, that the amount conveyed was very far from the sum exigible by her, or which she had a fair prospect to receive under her mother's marriage-contract. It was also averred by her, that when she and her husband acceded to the deed, they were not aware of the value of her interests under it, and that every thing connected with the amount of these interests, or the contents obligations in her mother's marriage-contract, were sedulously concealed by Ewen.The Lord Ordinary having reported the case on informations, the Court sustained the reasons of reduction, and reduced, decerned, and declared conform to the conclusions of the libel. Thereafter (5th December 1823) they adhered, “in so far as relates to the reduction of the trust-deed executed by the said John Ewen, as having been granted in fraudem of his marriage-contract with Janet Middleton; but altered, in so far as their interlocutor may be construed to extend to the reduction of the marriage-contract entered into between the respondent (Elizabeth Ewen) and James Grahame her husband; and find it unnecessary to reduce the said contract, in respect that the same does not import any discharge of the

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Hitherto the defence had been conducted by the trustees; but the Magistrates of Montrose, the proposed administrators of the charitable endowment projected by the trust-deed, came forward, and although their petition was (15th January 1824) refused as incompetent on the merits, they were held to be sisted as defenders to the action in the terms they prayed. *The Magistrates and trustees appealed. In the Court of Session several reasons of reduction had been discussed,—on the head-of deathbed, and the extent to which the law of deathbed affects moveables,—of fraud, lesion, and culpable concealment,—of defects peculiar to the construction of the trust-deed, &c.; but the ground on which the judgment of the House of Lords proceeded was, the effect of the terms of the postnuptial contract of 1787 upon the postnuptial contract of John Ewen and Janet Middleton in 1766.Appellants .—By the tripartite deed all claims whatever under the marriage-contract of 1766 are discharged. It is clear that was the enixa voluntas of parties. The discharge of the moveables is applicable ad omnia; and although the generality of “all goods, gear,” &c. be set down at the beginning of the clause applicable to the mother's death, it must in reading be carried on to the beginning of the clause applicable to the father's death. The words ‘either as bairn's part,’ &c. are exigetical, were added ex abundante, and cannot controul or destroy the effect of the general and ample discharge imported by the previous expressions. They are merely demonstrative, not taxative. The respondent's argument depends on not carrying forward the words ‘all goods,’ &c. and rests therefore on a false reading. Besides, the respondent discharged all claims competent “by and through the decease of the said Janet Middleton by virtue of her contract of marriage with the said John Ewen.” But these clearly included her right as heir of provision. The claim, to her mother's share of the goods in communion (supposing her mother had not by implication discharged it) was not a claim arising under the contract of marriage, and therefore could not have been in view in discharging claims under the contract of marriage. Consequently nothing was left to be discharged

Footnote

* 2. Shaw and Dunlop, No. 587.

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Respondent .—The Court below held, that the tripartite deed need not be reduced, as the discharge contained in it did not apply to the right to succeed as heir of provision under the marriage provision of 1766, and the tripartite deed was therefore no bar to reduce the trust settlement. Now what is the import of the tripartite deed? The respondent had a distinct and separate set of claims. One set of rights arising by and through the decease of her mother, whether created by virtue of the contract 1766 or otherwise; and the second set arising by and through the decease of her father. The rights affecting the father vested: in the respondent at her birth, but were not exigible until her mother's death. The first set embraced her mother's share of the goods in communion, which was not renounced in the contract 1766, but was discharged by the tripartite deed; and the other was the respondent's right as heir of provision under the contract of 1766, to which the discharge cannot be applied, because that was not a right by and through the decease of the mother, and could not arise until the father's death; whereas the claim discharged was one (arising by her mother's death) against her father during his lifetime. The addition of the words, ‘by virtue of her marriage-contract,’ &c. create no sound distinction. Then comes the second set of rights emerging on her father's death. But the words used do not include a discharge of her right as heir of provision; because, 1st, If intended to be discharged, this was the appropriate place for its introduction. But the deed is silent here (as it is throughout) on that important point. And, 2d, The deed does describe the rights to be discharged, and these are all rights competent at common law, but not one of them arising, ex contractu. The appellants try to carry forward and force in the words

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The House of Lords found, “that the marriage-contract entered into between the respondent and James Grahame her husband, imports a discharge of all the rights competent to the pursuer as heir of provision under her father's and mother's contract of marriage: And it is therefore ordered and adjudged, that the. interlocutors complained of, so far as they are inconsistent with this finding, be reversed: And it is further ordered, that the cause be remitted back to the Court of Session, to proceed further therein as shall be consistent with this judgment, and as shall be just.”Lord Gifford .—My Lords, The only other case to which I shall now call your Lordships' attention, is one which was heard last week, the case of the trust-disponees of the late John Ewen, merchant in Aberdeen, and Mrs Elizabeth Ewen or Grahame.My Lords,—The question in this cause, and the only question brought before your Lordships' House, is upon the construction of a supposed acquittance or discharge in the marriage-contract of Mrs Grahame,—that is the only question that now strictly can be determined by your Lordships.

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My Lords,—It appears that a person of the name of Ewen, who was originally an obscure person, stated in the papers to have been an itinerant pedlar, married, in the year 1766, a person of the name of Janet Middleton; and upon that occasion, or soon after the marriage, a postnuptial contract was executed between the parties. It was entered into by Mrs Ewen, with the consent of her mother; and by it she, in consideration of the marriage formerly solemnized, and now subsisting between her and her husband, conveyed to him, in the first place, her pro indiviso share of the property of the houses left by her father, and which were enjoyed by her mother in liferent; she also conveyed a bond for L. 100, granted by a methodist society in Aberdeen, under the burden also of her mother's liferent; and she and her mother conveyed to Mr Ewen his wife's share of the household furniture belonging to her father. In consideration of these covenants, Mr Ewen assigned and conveyed his whole property and effects to his wife, and the children that might be born of the marriage, according to the several events of a dissolution of the marriage, by the predecease of the husband or wife respectively, and with or without issue. This clause of the deed is expressed in the following terms:—
“And on the other part, the said John Ewen, in consideration of the said marriage, and of the disposition and assignation before-written, conceived in his favours, hereby, for him, his heirs, executors, and successors, and assignees, assigns, conveys, and dispones to and in favours of the said Janet Middleton, his spouse, her heirs and assignees whatsomever, in case she survive him, all and haill his whole goods, gear, merchant-ware, and effects, of whatever kind, quality, or denomination, with all and sundry debts and sums of money which shall be pertaining and belonging to, and resting and owing to him at the time of his death, whether heritable or moveable subjects, with power to her, immediately on his decease, to meddle and intromit therewith, and to use and dispose thereof at pleasure; providing always, that there shall be no children procreate of the marriage, and in life at the dissolution thereof: but declaring always, as it is hereby specially provided and declared, that if there shall happen to be a child or children procreate of the marriage, and in life at the dissolution thereof, and that the said Janet Middleton shall survive him the said John Ewen as said is, then, and in that case, the general disposition before-written, conceived in her favour, shall be, and is hereby restricted to the just and equal half of the whole household furniture, of every kind, belonging to him at the time of his death, and an annuity of L. 30 sterling, and which sum is to be paid at certain times of the year: And in case the said John Ewen should survive the said Janet Middleton, and there be a child or children of the marriage in life at the dissolution thereof, he binds and obliges himself to maintain and educate said child or children suitable to their station, until they are put in a way of doing for themselves; and that his subjects, whether heritable or moveable, shall belong to them equally at his death.”

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So that your Lordships perceive, by this marriage settlement, the whole of the property of the husband was settled on the children of that marriage, either upon the death of the husband, if he survived the wife, or if the wife survived the husband, subject to a certain annuity payable to her.My Lords,—It appears that there was only one child born of that marriage—a daughter, who is the respondent in this appeal. She married a person of the name of Grahame; and that marriage, it is said, took effect without the consent of her father;—whether it did or not, it appears, after the marriage, a settlement was made, and upon one of the clauses of that settlement the question in this cause turns. The deed was a tripartite contract between Mrs Grahame, first, with her husband's consent; secondly, her husband; and, thirdly, her father. I should have stated, that the mother of Mrs Grahame was dead, and that she was the only child. The deed recites, “That the parties, considering that Mr Grahame and his wife were lawfully married to each other upon a certain day in November 1787, and have lived together since that time as married persons, and that now a son is born lawfully procreated of the said marriage; and also considering that there was no contract of marriage entered into between them prior to the celebration of the marriage, and the said James Grahame intending soon to go abroad, where he may remain for some time in the prosecution of his affairs, he is desirous to make some suitable provision for his said spouse and family, according to his ability: And in like manner, the said John Ewen, out of his own free will, and from the regard he bears to his son and daughter, the said parties have, with mutual advice and consent, concerted and settled upon the postnuptial contract under-written: Therefore, in pursuance thereof, the said John Ewen hath instantly, at the making hereof, satisfied and paid to the said James Grahame the sum of L. 157. 10s. sterling, as one moiety of L. 315 sterling which he has agreed to give in name of tocher or dowry with his said daughter, of which moiety the said James Grahame and his spouse hereby grant the receipt, and discharge the said John Ewen, his heirs and executors thereof, renouncing all exceptions and objections: and John Ewen binds and obliges himself and his foresaids, to satisfy and pay to James Grahame, his heirs or executors, the remaining moiety at the first term of Whitsunday or Martinmas next immediately following year and day after the decease of the said John Ewen, with a fifth part more of liquidate penalty in case of failure, and the annualrent of the said moiety during the not-payment after the term of payment thereof above-written; and which whole sum of L. 315 sterling is hereby declared to be in full satisfaction to the said Mrs Elizabeth Grahame, alias Ewen, and her said husband, and they do hereby accept of the same in full contentation to them of all goods, gear, debts, sums of money, and other moveables whatsoever, which they might any ways ask, claim or crave, by

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My Lords,—It appears that Mr Ewen, the father, survived this marriage-contract a great many years; and it should seem that, in the latter part of his life, he became very opulent, and was possessed of many thousand pounds. It appears, that upon his death-bed he made a deed of settlement, the provisions of which it is unnecessary for me to state to your Lordships, except that he thereby provided for the payment of an annuity of L. 40 per annum, for the life of his daughter; and after leaving various other legacies and charitable bequests, he employed the remainder of his property in endowing an hospital in Montrose.My Lords,—After his death, Mrs Grahame instituted an action of reduction against the trust-disponees of this disposition, which, I have stated to your Lordships, was executed shortly before the death of Mr Ewen; and by her summons she seeks for the reduction of the trust settlement, and also of her own marriage-contract—she states the marriage-contract of her mother, and that she was the only child of that marriage—she seeks to have her own marriage-contract reduced, upon the ground “that it was obtained from her upon false pretences, and by gross fraud and circumvention on the part of her father; and particularly, by falsely representing, as proved by the foresaid postnuptial contract of marriage, that he entered into the said postnuptial contract out of his own free will, and from the regard he bore to his said son and daughter, and that he had advanced the sum of L. 157. 10s. as a moiety of L. 315, which he had agreed to give in the name of tocher or dowry; under which false and fraudulent device he elicited and impetrated, from the pursuer, a discharge to himself of all goods, debts, sums of money,” and so on; and which discharge, (she says), was so falsely and fraudulently obtained by the pursuer, her legal guardian, sine redditis rationibus,' and more particularly in and through the gross fraud and circumvention of the said John Ewen, seeing, at the time of the obtaining of the said discharge, he was in possession of property belonging to the pursuer in right of her deceased mother Janet Middleton.” Then she says, that the discharge was obtained on false pretences, and without any just or onerous cause, and to the pursuer's great hurt; and, moreover, that the discharge was obtained by John Ewen while he had in his possession the. contract of marriage. Then she states what that contract was, the result of that contract being,

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It appears, when the case came before the Court in January 1823, they pronounced an interlocutor, by which “they sustain the reasons of reduction, and reduce, decern, and declare conform to the conclusions of the libel;”—so that they originally reduced both the deeds, both the trust-disposition and the marriage-contract. However, on it coming on again on a reclaiming petition, the Court pronounced this interlocutor:—
“Having resumed consideration of this petition, with the additional petition given in for the petitioners, and advised the same with the answers to both petitions, they adhere to their interlocutor reclaimed against, and refuse the desire of the said petition, in so far as relates to the reduction of the trust deed executed by the said John Ewen, as having been granted in fraudem of his marriage-contract with Janet Middleton; but alter the interlocutor reclaimed against, in so far as it may be construed to extend to the reduction of the marriage-contract entered into between the respondent and James Grahame, her husband; and find it unnecessary to reduce the said contract, in respect that the same does not import any discharge of the rights competent to the pursuer on the death of her father, as heir of provision under her father and mother's contract of marriage; and decern and declare accordingly, but find no expenses due.”
So that your Lordships will perceive, that by this last interlocutor they recall the decision they had pronounced, by which they had reduced the marriage-contract; they think it unnecessary to proceed with that part of the action, because, upon looking at that marriage-contract, they think that the discharge which it contained did not import any discharge of the rights of the pursuer, upon the death of her father, as heir of provision; so that the single question brought before your Lordships, and which has been discussed at your Lordships' Bar, is, whether or not the Court of Session have come to a right conclusion, in judging that that contract did not operate to discharge the rights of Mrs Grahame upon the face of it, without considering whether it was a fair transaction—without considering whether the deed could be reduced upon the grounds stated in the summons—without considering whether fraud was practised or not; but whether, assuming it was a fair

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My Lords,—Whatever inclination one might feel in favour of this lady, under the circumstances of this case, finding that her father has left her only a small portion of his large possessions, having left the rest to charitable purposes—whatever inclination the House might feel to coincide, as far as it could, with the construction which has been put by the Court of Session upon this settlement, yet, acting judicially, I think we are bound, and that every Judge is bound to discard from his mind all the circumstances which might lead him away from the real question in the cause, namely, what is, upon the face of this instrument, the fair construction of the language that has been used by the parties.At the time this instrument was executed, it appears that this gentleman, Mr Ewen, was not in very wealthy circumstances; and it is not at all improbable, that the sum he appropriated to them might be a very large portion of his property. She had married, and he agrees to give her L. 315, one-half of it to be paid down immediately, and the rest a year after his decease. I do not stay to comment upon the particular expressions of the former parts of the settlement, because at last we come to the question, of what the lady has done in the last clause of the settlement. My Lords, her mother was dead, and it is said that, strictly speaking, upon the death of her mother no right vested in her, but it was only upon the death of her father she was entitled to any claim at all. My Lords, by the death of her mother, her rights were so far ascertained, that she was the only child of the marriage, and it was impossible for the father to deprive her of any property he might be possessed of at the time of his death. She accepts it “in full contentation of all goods, gear, debts, sums of money, and other moveables whatsoever, which she might any ways ask, claim, or crave, by and through the decease of the said Janet Middleton, her mother, by virtue of her contract of marriage with the said John Ewen, her father, or of any clause, article, or condition therein contained, which is hereby discharged to all intents and purposes, as fully and effectually as if the same was particularly engrossed, or by any other manner of way, or by and through the decease of the said John Ewen, her father, whenever the same shall happen at the pleasure of God.” Now, I really think, that a lawyer, looking at this instrument, would say, it is clear she intended to discharge every claim she had under her marriage-contract. But it is said, that although at the first view that might appear to be the construction of it, yet the words, “by and through the decease of the said Janet Middleton, her mother,” are restricted to what she had a right to upon the death of her mother; and it is said she might have released and foregone that which her mother was entitled to. But it is quite obvious to me, that the words are sufficient to discharge every right she had under this marriage settlement, or at common law, upon her father's death. My Lords, I agree, though I do not go to the extent urged by one of

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Appellants' Authority .—Todd, Dec. 12. 1770. Respondent's Authorities .—1. Stair, 18. 2.; 3. Ersk. 4. 9.; Swan, June 17. 1620, (5038.); Weems, July 24. 1706, (912.); Gordon, Dec. 25. 1702, (5050.); 1 Monro, Dec. 16. 1712, (5052.); Anderson, Nov. 22. 1743,(5054.); Hepburn, June 24. 1785, (5056.); Fife, Nov. 29. 1751; Nisbett, Jan. 18. 1726, (8181.); Sinclair, July 29. 1768, (8188.); Irvine, Dec. 15. 1744, (2304.); Maxwell, Feb. 1722, (3194.)Solicitors: Duthie— Spottiswoode and Robertson,—Solicitors.