Burgh-Smeaton v. Whitson (Burgh-Smeaton's Judicial Factor) and Others [1907] ScotLR 718 (06 June 1907)

Burgh-Smeaton v. Whitson (Burgh-Smeaton's Judicial Factor) and Others [1907] ScotLR 718 (06 June 1907)

The marriage contract, when read as a whole, implies a contingent fee in favour of the children of the marriage, conditional on their surviving their mother and the death or remarriage of their father. This implied right is sufficient to disentitle the pursuer to immediate reconveyance or declarator of sole beneficial interest in the fee. The trust must be maintained for the children's contingent interests, and the dissolution of marriage by divorce does not accelerate or defeat these interests.

Citation
[1907] ScotLR 718
Parties
Pursuer: Elizabeth Margaret Burgh-Smeaton; Defender: Thomas Barnby Whitson (Judicial Factor); Defender: Thomas Wright Burgh-Smeaton; Defender: Children of the marriage (Leila Margaret Mary Burgh-Smeaton and others); Defender: Mary Margaret Young or Smeaton
Jurisdiction
Scotland
Judgment Date
06 June 1907
Procedural Posture
Civil (trust/succession) / Appeal (reclaiming Note) From Lord Ordinary's Interlocutor
Outcome
Action dismissed as regards the first conclusion; assoilzies (absolves) defenders from first alternative of second and third conclusions; otherwise adheres to Lord Ordinary's interlocutor with variation.
Legal Topics
Marriage Contract, Implied Trust, Succession Rights, Gift Over, Divorce Effect on Trust, Children's Contingent Interests
Family Law Trusts and Succession Marriage Contract Implied Trust Succession Rights Gift Over Divorce Effect on Trust Children's Contingent Interests

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Parties

Elizabeth Margaret Burgh-Smeaton

Pursuer

Thomas Barnby Whitson (Judicial Factor)

Defender

Thomas Wright Burgh-Smeaton

Defender

Children of the marriage (Leila Margaret Mary Burgh-Smeaton and others)

Defender

Mary Margaret Young or Smeaton

Defender

Procedural Posture

Civil (trust/succession) / Appeal (reclaiming Note) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the children of the marriage have, by implication, a contingent right to the fee of the heritable estate under the antenuptial marriage contract
  2. 2 Whether the pursuer (wife) is entitled to immediate reconveyance of the estate following divorce
  3. 3 Effect of divorce on trust and succession provisions in marriage contract

Ratio Decidendi

The marriage contract, when read as a whole, implies a contingent fee in favour of the children of the marriage, conditional on their surviving their mother and the death or remarriage of their father. This implied right is sufficient to disentitle the pursuer to immediate reconveyance or declarator of sole beneficial interest in the fee. The trust must be maintained for the children's contingent interests, and the dissolution of marriage by divorce does not accelerate or defeat these interests.

Court Disposition

Action dismissed as regards the first conclusion; assoilzies (absolves) defenders from first alternative of second and third conclusions; otherwise adheres to Lord Ordinary's interlocutor with variation.

Orders

  • Recall Lord Ordinary's interlocutor in so far as it assoilzies defenders from the first conclusion; dismiss the action in so far as the first conclusion is concerned; adhere to the interlocutor reclaimed against quoad ultra and decern.