Corbidge (May Somerville's Trustee) v. Fraser and Others (May Somerville's Trustees) and Others [1911] ScotLR 1027 (22 July 1911)

Corbidge (May Somerville's Trustee) v. Fraser and Others (May Somerville's Trustees) and Others [1911] ScotLR 1027 (22 July 1911)

The deed of settlement was contractual between husband and father, not a donation; as the husband was solvent at execution, the provisions for wife and children are not reducible or revocable by creditors. The provision to the wife is not excessive. The capital for the children is irrevocable and not challengeable so long as the child may survive to take a vested interest. The doctrine of donation inter virum et uxorem does not apply.

Citation
[1911] ScotLR 1027
Parties
Pursuer: Cooper Corbidge, C. A., London, trustee in the bankruptcy of Samuel W. May Somerville; Defender: William Stuart Fraser, W. S., Edinburgh, and others, trustees under a deed of settlement executed by the bankrupt and his father; Defender: Mrs Caroline Smith or May Somerville, formerly the bankrupt's wife; Defender: Dolores May Somerville, the pupil child of the marriage; Defender: Samuel W. May Somerville, the bankrupt
Jurisdiction
Scotland
Judgment Date
22 July 1911
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome
appeal dismissed; interlocutor of Lord Ordinary adhered to
Legal Topics
Postnuptial Settlements, Donatio Inter Virum Et Uxorem, Revocation of Gifts, Solvency, Testamentary Vs Inter Vivos Trusts, Creditors' Rights
Family Law Bankruptcy Trusts and Estates Postnuptial Settlements Donatio Inter Virum Et Uxorem Revocation of Gifts Solvency Testamentary Vs Inter Vivos Trusts +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 19 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

Cooper Corbidge, C. A., London, trustee in the bankruptcy of Samuel W. May Somerville

Pursuer

William Stuart Fraser, W. S., Edinburgh, and others, trustees under a deed of settlement executed by the bankrupt and his father

Defender

Mrs Caroline Smith or May Somerville, formerly the bankrupt's wife

Defender

Dolores May Somerville, the pupil child of the marriage

Defender

Samuel W. May Somerville, the bankrupt

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

  1. 1 Whether postnuptial settlement provisions in favour of wife and children are reducible as excessive at the instance of the trustee in bankruptcy
  2. 2 Whether the deed of settlement is contractual or testamentary and revocable
  3. 3 Whether the provisions are challengeable by creditors if the granter was solvent at execution

Ratio Decidendi

The deed of settlement was contractual between husband and father, not a donation; as the husband was solvent at execution, the provisions for wife and children are not reducible or revocable by creditors. The provision to the wife is not excessive. The capital for the children is irrevocable and not challengeable so long as the child may survive to take a vested interest. The doctrine of donation inter virum et uxorem does not apply.

Court Disposition

appeal dismissed; interlocutor of Lord Ordinary adhered to

Orders

  • Defenders assoilzied from declaratory and reductive conclusions
  • Trustees to lodge account of estate and intromissions