Imágenes de páginas
PDF
EPUB

Husband's consent dispensed with in certain cases.

Right given

to husband in wife's moveable succession.

Children of

domiciled in Scotland to have right of A legitim, &c.

written or documentary title) is invested, placed, or secured, in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband; but no such deed shall be of any effect as against any debt or obligation contracted by the husband prior to the date of the deed being so advertised and registered.

1 Supra, §§ 95, 194.

5. Where a wife is deserted by her husband,1 or is living apart from him with his consent, a judge of the Court of Session or Sheriff Court, on petition addressed to the court, may dispense with the husband's consent to any deed relating to her estate.3

1Cf. the Conjugal Rights (Scotland) Amendment Act, 1861, § 1, supra, p. 183.

2 Supra, §§ 100, 106.

Or to a petition for her appointment as executor-dative. Currie, The Confirmation of Executors, p. 98 (ed. 1890).

6. After the passing of this Act the husband of any woman who may die domiciled in Scotland1 shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.3

1 This is in accordance with the common law rule. Nisbett v. Nisbett's Trustees, 24 Feb. 1835, 13 S. 517; Newlands v. Chalmers' Trustees, 22 Nov. 1832, 11 S. 65; supra, § 39.

2 Supra, §§ 96, 97, 98.

3 Since the passing of this Act the husband has been decerned executor qua husband in the same manner as the widow has been in use to be decerned qua relict, Currie, The Confirmation of Executors, pp. 86, 293 (ed. 1890); but in a competition for the office the husband will be postponed to the next of kin, seeing that at common law they are entitled to the office in preference to the relict. Stewart v. Kerr, 19 March, 1890, 17 R.

7. 'After the passing of this Act the children of any woman who may women dying die domiciled in Scotland shall have the same right of legitim in regard to her moveable estate which they have according to the law and practice of Scotland in regard to the moveable estate of their deceased father,2 subject always to the same rules of law in relation to the character and extent of the said right, and to the exclusion, discharge, or satisfaction thereof, as the case may be.

[blocks in formation]

2 This excludes heritable securities upon or affecting land within the meaning of the Titles to Land Consolidation Act, 1868, supra, p. 190.

contracts and

8. This Act shall not affect any contracts made or to be made be- Exempting tween married persons before or during marriage, or the law relating certain legal to such contracts,' or the law relating to donations between married rights from persons, or to a wife's non-liability to diligence against her person, or Act. any of the rights of married women under the recited Act.3

1 Supra, §§ 95, 102, 174. Cf. Act 1681, c. 10, supra, p. 177, note 2. The present Act is not to affect any marriage or contract, ante-nuptial or post-nuptial (the power to make the former being reserved by sec. 1 sub-sec.5), or the rights of parties thereunder. The wife's estate may, notwithstanding sec. 1, be put sub jure mariti: the enactments as to jus relicti and legitim may be renounced or varied, and so on. Re Storror's Trust, L. R. 24 Ch. D. 195; Re Whitaker, L. R. 34 Ch. D. 227. But neither antenuptial nor post-nuptial contracts are to have more extensive privileges than before. The result of the English Act is that settled property may be exposed to liabilities it was not subject to before. Re Armstrong, L. R. 21 Q. B. D. 264. Cf. 31 and 32 Vict. c. 101, § 117, as to heritable securities, supra, p. 192, note 11.

2 Supra, §§ 14, 177.

3 Supra, § 102.

operation of

9. This Act may be cited as the Married Women's Property (Scot- Short title. land) Act, 1881.

SCHEDULE.

Form of Notice prescribed by Section 4.1

Notice is hereby given that on the

day of

a

deed by A.B. of C. [designation] and E.F. his wife has been registered

[blocks in formation]

An Act to restrain all Trusts and Directions in Deeds or Wills, whereby the Profits or Produce of Real or Personal Estate shall be accumulated, and the beneficial enjoyment thereof postponed beyond the time therein limited. 1

2

[28th July, 1800.]

WHEREAS, it is expedient that all dispositions of real or personal Preamble. estates, whereby the profits and produce thereof are directed to be accumulated, and the beneficial enjoyment thereof is postponed, should be made subject to the restrictions hereinafter contained. May it therefore please your Majesty that it may be enacted, and be it No person by deed or will, enacted by the King's most excellent Majesty by and with the advice &c., shall

settle or dispose of any real or per

sonal property

in such manner that the

rents or pro

duce shall be

accumulated for a longer period than herein mentioned, and any other

be void, and

persons who

and consent of the Lords, spiritual and temporal, and Commons, in Parliament assembled, and by the authority of the same, that no person or persons 3 shall, after the passing of this Act, by any deed or deeds, surrender or surrenders, will, codicil or otherwise howsoever, settle or dispose of any real or personal property so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twenty-one years direction shall from the death of any such grantor, settlor, devisor, or testator, or the rents, &c., during the minority or respective minorities of any person or persons shall go to the who shall be living or in ventre sa mere at the time of the death of would other such grantor, devisor, or testator, or during the minority or respective titled thereto. minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurances directing such accumulations would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction 7 shall be null and void, and the rents, issues, profits and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of this Act, go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed.1o

wise be cn

1 Commonly called the Thellusson Act. The principal points which have arisen under the Act are discussed in the Law Times, Vol. lxiv. p. 457; Vol. lxv. p. 31, et seqq. See also, Jarman, Treatise on Wills, i. p. 302, et seqq. (4th ed., 1881); M‘Laren, Wills and Succession, i. p. 302, et seqq.; Bythewood and Jarman, Precedents in Conveyancing, vii. p. 448 (ed. 1889); Hargrave, Treatise on the Thellusson Act (London, 1842)."

2 The word "dispositions" is a general term covering the particular deeds specified in the enacting clause. Per Lord Deas in Keith's Trustees v. Keith, 17 July, 1857, 19 D. at p. 1069.

3 This does not cover a beneficiary under a settlement. Accumulation by a beneficiary is not struck at. Griffiths v. Vere, 9 Ves. 127, 136; Tench r. Cheese, 6 De. G. M. and G. 453.

It is different in the case of trustees on whom the deed imposes the duty of accumulation. Pursell v. Elder, 1865, 4 M'Q. 992; Lord v. Colvin, 7 Dec. 1860, 23 D. 111.

+ Supra, § 152.

The four different periods beyond which accumulation of income is unlawful are alternative not cumulative. Therefore when one period has been applied and exhausted, a second period cannot be resorted to and applied in order to extend the time for accumulation. None of the periods exceed twenty-one years from the death of the settlor. Jagger v. Jagger, L. R. 25 Ch. D. 729.

5 Excluding the day of the testator's death. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; Gorst v. Loundes, 11 Sim. 434; Lester v. Garland, 15 Ves. 248.

"A direction in a will to apply a sufficient part of the income of the testator's estate in keeping on foot policies effected by him on the lives of his children, and to be settled in case of their marriage on their wives and children, is not a trust for accumulation within the statute, and is accordingly effectual for a period of more than twenty-one years from the testator's death. Bassil v. Lister, 9 Hare, 177. The effecting of policies of insurance on lives is not a mode of accumulation at all. Cathcart's Trustees v. Heneage's Trustees, 13 July, 1883, 10 R. 1205.

But after the lapse of twenty-one years from the testator's death trustees are not entitled to apply surplus revenue in paying off debts incurred by themselves in the purchase of lands during that period. Such payments are accumulations. Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176.

7 It is immaterial that the settlor has not directed accumulation, if the effect of the deed is to cause accumulation beyond the limits allowed by the statute. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; and the English cases of Evans v. Hellier, 12 Cl. and F. 114; Tench v. Cheese, 6 De. G. M. and G. 453; Countess of Bective v. Hodgson, 10 H. L. Ca. 656, 671; Mathews v. Keble, L. R. 3 Ch. App. 691; Wade-Gery v. Handley, L. R. 1 Ch. D. 653, 3 Ch. D. 374; Campbell's Trustees v. Crichton, 1890, per Lord Kincairney, but now under review in Inner House.

8 A trust for accumulation, reaching beyond the allowed period, is good pro tanto. Luydon v. Simson, 12 Ves. 295.

9I.e., from the commencement of the twenty-second year. Per M'Neill, L.P., in Keith v. Keith's Trustees, 17 July, 1857, 19 D. at p. 1057.

10 The effect is to give the accumulations to the persons who would have succeeded ab intestato; that is to the persons entitled to take by reason of the deceased not having disposed of that estate. This implies a reference to the date at which he died intestate. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176.

As to the destination of income released from accumulation, see M'Laren, Wills and Succession, i. p. 307; Bythewood and Jarman, Precedents, vii. p. 452; Ogilvie v. Kirk Session of Dundee, 18 (decided 12) July, 1846, 8 Ď. 1229; Lord v. Colvin, supra; Mackenzie v. Mackenzie's Trustees, 29 June, 1877, 4 R. 962; Maxwell's Trustees v. Maxwell, 24 Nov. 1877, 5 R. 248; Smyth's Trustees v. Kinloch, supra.

1

herein to

provision for payment of

debts or for

2. Provided always, and be it enacted, that nothing in this Act Nothing contained shall extend to any provision for payment of debts of any extend to any grantor, settlor, or devisor, or other person or persons, or to any provision for raising portions for any child or children of any grantor, settlor, or devisor, or any child or children of any person tions for taking any interest under any such conveyance, settlement or devise, touching the or to any direction touching the produce of timber or wood upon any produce nor lands or tenements, but that all such provisions and directions shall to any disand may be made and given as if this Act had not passed.

3. Provided also, and be it enacted, that nothing in the Act contained shall extend to any disposition respecting heritable property within that part of Great Britain called Scotland.3

raising porchildren or

of

position of heritable property in Scotland.

4. Provided also, and be it enacted, that the restrictions in this Act When restriccontained shall take effect and be in force with respect to wills and take effect

tions shall

with respect testaments made and executed before the passing of this Act in such to wills made

before the

passing of this Act.

cases only where the devisor or testator shall be living, and of sound and disposing mind after the expiration of twelve calendar months from the passing of this Act.1

1They must be debts in existence at the death of the settlor and subsisting at the date when the trust comes into operation, not debts incurred by the trustees under the settlement. Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176. To come within the exception it must be the primary and bona fide object of the testator's direction to make provision for payment of the debts. Mathews v. Keble, L. R. 3 Ch. App. 691. Accumulation will not be allowed if in point of fact the debts are paid off from other sources. Tewart v. Lawson, L. R. 18 Eq. 490.

2 As to this part of the Act, see Peachey, The Law of Settlements, p. 440 et seqq; Bythewood and Jarman, Precedents, vii. p. 456; Barrington v. Liddell, 2 De. G. M. and G. 480.

3 Repealed 11 and 12 Vict. c. 36, s. 41, infra, p. 205, which enacts that 39 and 40 Geo. III. c. 98, shall in future apply to heritable property in Scotland.

The Act applied to moveable property in Scotland from the date of its passing. Supra, § 153. Ogilvie's Trustees v. Kirk Session of Dundee, 18 July, 1846, 8 D. 1230. Keith's Trustees v. Keith, 17 July, 1857, 19 D. 1040; M'Laren, Wills and Succession, i. p. 300.

"The reason for the exception of heritable property was to avoid trenching on the prejudices of the Scotch people, and out of a regard to the law of perpetuities in that country." Per Kindersley, V.C., in Macpherson v. Stewart, 1858, 7 W. R. 34.

4Commented on by Lord Ivory and Lord Deas in Keith's Trustees v. Keith, supra, 19 D. at pp. 1062, 1069.

No. XIII.

11 AND 12 VICTORIA, C. 36.

An Act for the Amendment of the Law of Entail in Scotland.1

[14th August, 1848.]

1 Commonly called the Rutherfurd Act. Supra, §§ 145, 148. In the year 1764, upon the suggestion of Lord Mansfield, proposals were made by the Faculty of Advocates for the abolition of the law of Entail. At a meeting of the Faculty upon 4th August, 1764, the proposals were approved of by 43 to 4. In 1765 was published, "Heads for a Bill to amend the law concerning Taillies in that part of Great Britain called Scotland. By the Faculty of Advocates. Edinburgh, 1765,” 8vo. The scheme was to allow existing entails to stand as they were during the lives of the heirs in possession and of the substitutes then alive, and that thereafter the prohibitions of the entail should become inoperative except to the extent to be allowed by the proposed Act. It was proposed that in future it should not be lawful to restrain any heirs of taillie not in life at the time from alienating such lands for valuable consideration, or from granting heritable securities thereon; but that it should be lawful for proprietors to make entails binding upon persons in life at the time of making the settle. ment.

« AnteriorContinuar »