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a liferent therein determinable or defeasible upon his sequestration, or SO as in any way to reserve the income to himself and place it beyond the reach of his creditors.1 In other words a husband cannot create an alimentary annuity in his own favour. If he does he can recall it.2 "No man," says Lord O'Hagan,3 "is permitted to filch his own income from the hands of his creditors." 4 On sequestration any such provision passes to the trustee, and will be realized by him for the creditors.5 This is a principle which is to be kept carefully in view, as it is often overlooked, and many a family has had a rude awakening, when on the husband's bankruptcy a fund which he had set aside

1 MacKenzie's Creditors v. Mackenzie (Redcastle Case), 1792, Bell's 8vo Cases, p. 404; Wood v. Begbie, 7 June, 1850, 12 D. 963; Ker's Trustee v. Justice, 7 Nov. 1866, 5 M. 4; Learmonth v. Miller, 2d App. 1875, L.R. 2 Sc. App. 439, S.C. 2 R. (H. of L) 62; Forrest v. Robertson's Trustees, 27 Oct. 1876, 4 R. 22.

As to Entail, see Bell, Pr. § 1747 (3).

The case of a settlement, e.g. by entail made in respect of a payment in money or other remuneratory consideration is of course different. Stewart v. Agnew, 1822, 1 Sh. App. 320. Per Lord Brougham in Dickson v. Cuninghame, 1831, 5 W. and S. at p. 696.

The English law is the same. Higinbotham v. Holme, 19 Ves. 88; Gilchrist v. Cator, 1 De G. and S. 188; In re Pearson, Ex parte Stephens, L.R. 3 Ch. D. 807. Vaizey, Law of Settlements of Property, ii. p. 951; Campbell, Law relating to the Sale of Goods, p. 81.

2 Hamilton's Trustees v. Hamilton, 9 July, 1879, 6 R. 1216.

3 In Learmonth v. Miller, supra, at p. 445. See also per Lord Brougham in Dickson v. Cuninghame, 1831, 5 W. and S. at p. 693.

4 The rule is not confined to the case of family provisions, but is general. Ex parte Barter, Ex parte Black, In re Walker, L.R. 26 Ch. D. 510.

5 In England the case of a married woman is allowed as an exception to this rule. A restriction upon anticipation-the counter part of the Scotch declaration that a provision is alimentary-has been held as valid when imposed by the married woman herself as when imposed by a stranger. Buckton v. Hay, L.R. 11 Ch. D. at p. 648; Clive v. Carew, 1 J. and H. 199; Arnold v. Woodhams, L.R. 16 Eq. at p. 33. See Gordon v. Murray, 9 Feb. 1833, 11 S. 368.

by ante-nuptial contract for the maintenance of his family, but made payable to himself, has been suddenly snatched away.1


till bank


§ 155. To meet this difficulty, it has long been the practice Life interest in England, and is now becoming the practice in Scotland, on to provide in ante-nuptial contracts that the income of property brought into settlement by the husband shall only be payable to him "during his lifetime or till he shall become bankrupt, or shall assign, charge, or encumber it, or shall do or suffer something whereby the same or some part thereof would, through his act or default, or by operation or process of law, if belonging absolutely to him, become vested in or payable to some other person, and that from and after the determination of that trust the income is to be paid to' some other person, e.g. his wife or children; or generally to be dealt with as if he were dead." It is settled in England that this device is valid. husband's creditors cannot touch the income of property brought into settlement by him, if the alienation or charge has taken place, either by his voluntary acts or by involuntary alienation by operation of law, in favour of a particular creditor before the commencement of bankruptcy. If the 1 Wood v. Begbie, 7 June, 1850, 12 D. 963.


2 The form of clause given in the Juridical Styles, i. pp. 214, 226 (5th ed., 1881), would be ineffectual. It simply amounts to a declaration by the husband himself that the creditors are not to take the liferent he has set aside for himself.

3 Lewin, Law of Trusts, p. 104 (8th ed., 1885), Williams; Law of Real Property, p. 95 (ed. 1880); Robson, Law of Bankruptcy, pp. 437, 439 (6th ed.); Yate-Lee and Wace, Law of Bankruptcy, p. 342 et seqq. (1884); Baldwin, Law of Bankruptcy, p. 205 (6th ed., 1890).

4 Detmold v. Detmold, 1889, L.R. 40 Ch. D. 585; Knight v. Browne, 7 Jur. (N. S.) 894. It is different in the case of a post-nuptial settlement--such an arrangement is there held to be fraudulent within the meaning of the Statutes of Elizabeth. See In re Pearson, ex parte Stephens, 1876, L.R. 3 Ch. D. 807.

Husband's property may be settled


husband has made no attempt to alienate, and the determination of his interest is caused solely by his being adjudicated bankrupt, the scheme will fail. It is different when the property did not originally belong to the husband himself. If it came from the wife or from a stranger-and in this connection any one, e.g. his father, will be a strangerand is settled in the above terms, the clause will be effectual in the case of bankruptcy and against creditors generally.2

§ 156. The result is that the income of the whole upon him till property brought into settlement can be effectually settled upon the husband till he attempts to alienate it; and that the income of the whole of that property, except what property till originally belonged to him, can be settled on him till his


his bank


Effect of clause in Scotland.

bankruptcy. The life interest of the husband in the whole of the property can therefore be made inalienable, and his life interest in the whole of the property, except that which originally belonged to him, can be secured as against his trustee in bankruptcy.

§ 157. The point has not arisen for judicial determination in Scotland in reference to property originally belonging to the husband; but such a clause in a contract of marriage will protect income arising from the wife's property, and payable to the husband; and a clause of the same character in a testamentary deed will protect a bequest against creditors. In that case it is a condition attached to a gift


1 Authorities, p. 119, note3; Vaizey, Law of Settlements of Property, ii. pp. 947, 951; Bythewood and Jarman, Precedents in Conveyancing, vi. p. 285 (4th ed., 1890).

2 Davidson, Precedents in Conveyancing, iii. p. 123; Jarman, Treatise on Wills, ii. p. 30 (4th ed., 1881).

3 Campbell v. Clinton, 22 June, 1866, 4 M. 858. Cf. Corbet v. Waddell, 13 Nov. 1879, 7 R. 200.

♦ Trappes v. Meredith, 3 Nov. 1871, 10 M. 38. This case is reported

by a third person, and is therefore in a different position from a provision by one in his own favour.

In the days when it was held that jus mariti and right of administration could not be excluded by the husband's own act, it was conceded that they could be defeated in a deed of gift by a third person to a married woman, by inserting a clause providing that if the husband claimed the property, it should return to the donor.1 Later, a donor provided that the jus mariti and right of administration should be forfeited if the donee's husband became insolvent; the husband did so, and the Court held that his rights had been effectually excluded.2 In Scotland as in England forfeiture of a life interest upon re-marriage is recognized and given effect to. The liferent is given until the occurrence of a certain event, when it is to terminate.

in England, L.R. 10. Eq. 604, 7 Ch. App. 248. Kirkland v. Kirkland's Trustee, 18 March, 1886, 13 R. 798; Jamieson v. Hoile, p. 122, note 2. 1See Nicolson v. Inglis, 1678, M. 5834.

2 Annand v. Chessels, 4 March, 1774, M. 5844, affd. H. of L., 2 Pat. 369. Here the creditors pleaded that "an eventual exclusion of the jus mariti, in case of insolvency, is an unfair device, calculated to ensnare creditors, and to defraud them of their just rights." But Lord Mansfield, who gave judgment in the appeal, paid no attention to the argument.

A clause of forfeiture on bankruptcy, it will be remembered, is common in leases, and is binding upon the tenants' creditors. They can only take what the bankrupt himself had. It is also common in partnership contracts.

There was an arrangement not uncommon in Scotland in the marriage contracts of the seventeenth century, not unlike that under consideration, which provided that if by captions, apprisings, or civil distress, the husband should not be able to live peaceably with the wife, and entertain her, she should, with his concourse, have right to certain lands for entertainment of herself and family. The clause came before the Commissioners of Justice during the Commonwealth, but its precise effect was not determined. Gordon v. Gregory, 1658, Decisions of the English Judges, p. 129.

Principle upon which the rule depends.

A similar arrangement probably effectual in Scotland.

$158. The English doctrine, no doubt, depends upon certain technical reasons which, in terms, do not apply in Scotland, but the rule itself and the considerations which underlie it are perfectly consonant with the principles of our law, The rule in England is founded upon the doctrine of conditional limitation, as distinguished from a gift subject to a condition, but this it is unnecessary to discuss.1 What is of the essence of the arrangement is that the gift is not of fee but of liferent only, and is to cease upon the occurrence of a certain event, and in that case to pass to another.

159. A similar condition would seem to be valid in Scotland to the same extent as in England.2 As the fund itself is vested in trustees, the beneficiary's right is limited to a claim against them, and he cannot go beyond the limitations of the deed which creates the claim. On the occurrence of a certain event his right determines and a jus crediti in another emerges. "A man cannot," says Lord Moncrieff, L.-J.C., "put his property out of his power, and beyond the reach of his creditors, without constituting at the same time some right, direct or contingent, in regard to that property in another." The marriage is valuable consideration for the contingent right conferred upon the wife and children. As expressed in England, they are purchasers for value.1 The principle is the same as

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1 The subject is lucidly explained by Fry, J., in Dugdale v. Dugdale, L.R. 38 Ch. D. 176. As to the difference between the law of England and of Scotland in reference to conditional limitations, see Barstow v. Black, 1868, L.R. 1 Sc. App. 392.

2 See Jamieson v. Hoile, 30 Oct. 1890, 28 S.L.R. 51.

3 Hamilton's Trustees v. Hamilton, 9 July, 1879, 6 R. at p. 1221. See per Lord Eskgrove and Lord Braxfield in Dickson v. Cuninghame, 1786, 5 W. and S. at pp. 662, 663.

4 Lewin, Law of Trusts, p. 104 (8th ed.). Per Lord Westbury in Leslie v. Macleod, 1870, L.R. 2 Sc. App. at p. 49; 8 M. (H.L.) at p. 107.

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