Dunsmure's Trustees v. Dunsmure's Trustees and Another [1920] ScotLR 142 (18 December 1920)

Dunsmure's Trustees v. Dunsmure's Trustees and Another [1920] ScotLR 142 (18 December 1920)

The marriage contract did not create a strictly alimentary liferent for the widow; the language used was insufficient to make the right intransmissible or unrenounceable. With no children surviving and the widow being the sole beneficiary under the husband's will, she is entitled to renounce her liferent and demand the trust estate. The precedent in Martin v. Bannatyne is directly applicable and controlling.

Citation
[1920] ScotLR 142
Parties
First Parties: Alexander Henderson Dunsmure and others (antenuptial marriage-contract trustees of Henry William Henderson Dunsmure and Alice Mary Terrot Malcolm or Dunsmure); Second Parties: John Leslie Hunter and another (testamentary trustees of Henry William Henderson Dunsmure); Third Party: Mrs Alice Mary Terrot Malcolm or Dunsmure
Jurisdiction
Scotland
Judgment Date
18 December 1920
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment on Question of Law
Outcome
Question of law answered in the affirmative: the widow can renounce her liferent right.
Legal Topics
Marriage Contract, Alimentary Provision, Liferent, Trust Construction, Renunciation of Liferent
Trusts and Estates Family Law Marriage Contract Alimentary Provision Liferent Trust Construction Renunciation of Liferent

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Parties

Alexander Henderson Dunsmure and others (antenuptial marriage-contract trustees of Henry William Henderson Dunsmure and Alice Mary Terrot Malcolm or Dunsmure)

First Parties

John Leslie Hunter and another (testamentary trustees of Henry William Henderson Dunsmure)

Second Parties

Mrs Alice Mary Terrot Malcolm or Dunsmure

Third Party

Procedural Posture

Special Case (court of Session, Inner House, First Division) / Judgment on Question of Law

Legal Issues

  1. 1 Whether the widow can renounce or discharge her right to the free annual income (liferent) under the marriage contract, given the death of all children of the marriage.

Ratio Decidendi

The marriage contract did not create a strictly alimentary liferent for the widow; the language used was insufficient to make the right intransmissible or unrenounceable. With no children surviving and the widow being the sole beneficiary under the husband's will, she is entitled to renounce her liferent and demand the trust estate. The precedent in Martin v. Bannatyne is directly applicable and controlling.

Court Disposition

Question of law answered in the affirmative: the widow can renounce her liferent right.

Orders

  • Marriage-contract trustees are entitled to denude and make over the trust estate as requested.