Sawrey-Cookson v. Sawrey-Cookson's Trustees [1905] ScotLR 43_209_1 (28 November 1905)

Sawrey-Cookson v. Sawrey-Cookson's Trustees [1905] ScotLR 43_209_1 (28 November 1905)

The trust conveyance, being a Scottish deed, is revocable under Scottish law if the pursuer had remained domiciled in Scotland; however, after marriage and acquisition of English domicile, the effect of English law on capacity to revoke must be ascertained; ratification executed in England is governed by English law and may be irrevocable; averments for reduction of ratification are irrelevant as pursuer acted at arm's length with independent advice.

Citation
[1905] ScotLR 43_209_1
Parties
Pursuer: Mrs Catherine Anna Stirling Sawrey-Cookson; Pursuer: James Freville Rawlinson Sawrey-Cookson; Defender: Thomas Archibald Warnock; Defender: Mark Bannatyne
Jurisdiction
Scotland
Judgment Date
28 November 1905
Procedural Posture
Action of Reduction / Inner House, First Division, Reclaiming Note Against Interlocutor of Lord Ordinary
Outcome
Interlocutor of Lord Ordinary recalled; proof on reduction of ratification disallowed; English law to be ascertained before further answer.
Legal Topics
Revocation of Trusts, Capacity of Married Women, Essential Error, Misrepresentation, International Law—conflict, Ratification, Reduction
Trusts Family Law Conflict of Laws Revocation of Trusts Capacity of Married Women Essential Error Misrepresentation International Law—conflict +2 more

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Parties

Mrs Catherine Anna Stirling Sawrey-Cookson

Pursuer

James Freville Rawlinson Sawrey-Cookson

Pursuer

Thomas Archibald Warnock

Defender

Mark Bannatyne

Defender

Procedural Posture

Action of Reduction / Inner House, First Division, Reclaiming Note Against Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether a Scottish trust conveyance executed by a minor in contemplation of marriage is revocable after marriage to an Englishman
  2. 2 Whether ratification of the trust conveyance by the married woman and her husband is reducible for essential error or misrepresentation
  3. 3 Which law governs revocability: Scottish or English

Ratio Decidendi

The trust conveyance, being a Scottish deed, is revocable under Scottish law if the pursuer had remained domiciled in Scotland; however, after marriage and acquisition of English domicile, the effect of English law on capacity to revoke must be ascertained; ratification executed in England is governed by English law and may be irrevocable; averments for reduction of ratification are irrelevant as pursuer acted at arm's length with independent advice.

Court Disposition

Interlocutor of Lord Ordinary recalled; proof on reduction of ratification disallowed; English law to be ascertained before further answer.

Orders

  • Direct English law averred by defenders to be ascertained under Act 22 and 23 Vict. cap. 63.
  • Appoint parties to prepare a case under said Act for approval of the Court.