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Act of 1874, which only deals with the husband's liability in respect of his wife's debts." 1 In that case the wife was possessed of certain bank shares and other property, the whole of which was, by a settlement before the marriage, assigned to a trustee upon trust for the separate use of the wife. Earlier in the year the point had been touched upon in the House of Lords in one of the City of Glasgow Bank Appeals; and again came before the Court of Session when both husband and wife were placed upon the list of contributories, thus practically overruling its former judgment.3 Neither in this case nor in that of Wishart was there a marriage contract, but, as appears from the English case, this makes no difference. Liability attaches to the husband because of his marital relation, not because he has been lucratus by the marriage.

The law has been altered, as regards England, by the Married Women's Property Act, 1882, and the husband is now only liable to the extent of the property acquired through his wife. The former rule, however, still prevails in Scotland.

§ 81. In Hill's cases the wife endeavoured to escape liability by pleading minority at the date of the acquisition of the shares, but the Court held that as she had allowed the quadriennium utile to expire without challenging the transaction she could not afterwards open it up.

The Act, it has been decided, does not affect the husband's liability for his wife's expenses in a divorce suit at his

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1 In re West of England Bank, ex parte Hatcher, L.R. 12 Ch. D. 284 ; see also Burlinson's Case, 3 De G. and S. 18; Sadler's Case, ib. 36; Luard's Case, 1 De G. F. and J., 533.

2 Bell v. the City of Glasgow Bank, L.R. 4 App. Ca. 550; S.C. 6 R. (H.L.) 55.

3 Hill v. City of Glasgow Bank, 24 Oct. 1879, 7 R. 68.

4 45 and 46 Vict. c. 75, §§ 13, 14, 15.

instance, even when she is earning wages.1 lucratus by the marriage the husband is not aliment her relatives.2

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a Inquiry as to

property ac

husband

§ 82. It is provided (sec. 4) that any Court in which husband shall be sued for an ante-nuptial debt of his wife quired by shall have power to direct any inquiry or proceedings through wife. which it may think proper for the purpose of ascertaining the nature, amount, and value of any property acquired by him through her, and in respect of which he is liable under the Act.

MARRIED WOMEN'S POLICIES OF ASSURANCE (SCOTLAND)

ACT, 1880.3

§ 83. At common law in Scotland a wife has an insurable Former difficulty as to interest in the life of her husband, and a husband in the wife insuring husband's life. life of his wife.1 In England there is an insurable interest in neither case. This was remedied as regards insurance by a wife, in 1870, by the Married Women's Property Act of that year;5 and in 1880 a corresponding provision was made for this country by the Married Women's Policies of Assurance (Scotland) Act, 1880, but the case of insurance of the life of a wife by her husband still stands on the common law. The Act provides :—

1 Milne v. Milne, 8 Dec. 1885, 13 R. 304.

L.R. 13, P.D. 180.

See Harrison v. Harrison,

2 M'Allan v. Alexander, 7 July, 1888, 15 R. 863. Supra, § 22.

3 43 and 44 Vict. c. 26. Appendix, p. 195.

4 See Wight v. Brown, 27 Jan. 1849, 11 D. 459; Craig v. Galloway, 1861, 4 M'Q. 267; 16 and 17 Vict. c. 34, § 54.

5 The existing provision in England is § 11 of the Married Women's Property Act, 1882, which in terms is almost identical with the former Act.

Married

woman may insure her

husband's life

for her

1. That a married woman may effect a policy of assurance on her own life or on the life of her husband for her

separate use. separate use.

Married man

may insure his

and children.

The policy and all benefit thereof, if expressed to be for her separate use, immediately vests in her, and is payable to her and her heirs, executors, and assignees, excluding the jus mariti and right of administration of her husband, and is assignable by her either inter vivos or mortis causa without consent of her husband. The contract in the policy, it is declared, shall be as valid and effectual as if made with an unmarried woman. The husband's consent to the contract is not required, and the policy is the wife's property.

This places married women in the same position as they occupy in regard to earnings under the Act of 1877, and to this extent a married woman is treated as a feme sole.

As regards succession, such a policy will fall under the operation of secs. 6 and 7 of the Married Women's Property Act of 1882, to be afterwards referred to.

84. 2. A policy of assurance effected, under the Act, by any life for his wife married man on his own life, and expressed upon the face of it to be for the benefit of his wife or of his children or of his wife and children shall, with all benefit thereof, be deemed a trust for the benefit of his wife for her separate use, or for the benefit of his children, or for the benefit of his wife and children.

If the husband takes the policy in these terms, it vests in him and his legal representatives in trust for the purposes so expressed; or, if he thinks proper, he may vest it for these purposes in other trustees, by a writing duly intimated to the assurance office.

Whether the trust remains in the husband, or is transferred to other trustees, it creates an interest in the bene

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ficiary which is indefeasible, so far as the husband is concerned. The wife or children, as the case may be, may, however, surrender the policy,1 and deal with the proceeds. The trustee of the policy, whether the husband or a stranger, must be a consenter, as trustee, to the receipt to the Assurance Office, but the policy is not otherwise under his control. If the trust remains in him, the beneficiaries cannot recover the proceeds directly on his death; but must do so through his legal representatives in whom the trust is continued by the statute.2

The receipt of the trustee of the policy for the sums thereby secured, or for the value thereof in whole or in part, is declared by the statute to be a sufficient and effectual discharge to the Assurance Office.

This power not

affected by domicile of

husband.

express the interests the

§ 85. There is no limitation in the Act as there is in the case of the Act of 1881, to be afterwards mentioned, as to the domicile of the husband. A domiciled German can take advantage of the Act as fully as a domiciled Scotsman.3 §86. The policy may and ought to declare specifically the Policy should interests which the beneficiaries are to take. If this is not beneficiaries done, and the policy is expressed simply in the words of the Act, "for the benefit of wife and children," the question arises what are their respective interests? It is to the policy, not to the Act, or to the practice in reference to antenuptial contracts of marriage, that we must look to ascertain what the assured intended.*

1 Schumann v. Scottish Widows' Fund, 5 March, 1886, 13 R. 678. It is otherwise in England, Griffith, The Married Women's Property Acts, by Bromfield, p. 83; but the language of the English statute is different.

2 Cf. Newman v. Belsten, 76 L. T. Journal, 228.

3 Schumann v. Scottish Widows' Fund Society, supra.

4 Per North, J., in re Seyton, infra. See also Schumann v. Scottish Widows' Fund Society, supra. Per Lord Deas in Walker's Executor v. Walker, 19 June, 1878, 5 R. 969.

are to take.

Post-nati.

Donation of policy.

In England, opinion has varied. First, it was held that the proceeds of the policy were to be distributed as if the husband had died intestate; then it was suggested, by the Court, that the wife takes a life interest only, with remainder to the children,2 and lastly it has been decided that the wife and children who survive take as joint tenants, and not as in a case of intestacy. Children who predecease the assured take no interest.3 If all the beneficiaries predecease him the policy will apparently in England revert to him. The Scotch statute makes no provision for the case, and this should therefore be done in the policy.

In a recent Scotch case a destination in a life policy was discussed, but the question turned upon the common law, not upon the statute, and was not decided.

The fact that the policy is an immediate declaration of trust, will not prevent children born subsequently to its date, but before the trust fund comes into existence, taking as joint tenants with those already born."

An ordinary policy was effected and kept up by the husband, but was made payable to the wife, her heirs, executors, and assignees; the husband died leaving the policy standing in these terms, when it was held to be a donation to the wife, and that it therefore passed at law to her own heirs in mobilibus. Under the Married Women's Property Act, to be

1 Re Mellor's Policy Trusts, L.R. 7 Ch. D. 200. This decision was explained in re Seyton, infra.

2 Re Adams' Policy Trusts, L.R. 23 Ch. D. 525.

3 Re Seyton; Seyton v. Satterthwaite, L.R. 34 Ch. D.511. Infra, p. 196.

4 Chalmer's Trustees, 16 March, 1882, 9 R. 743.

5 M'Gregor v. M'Gregor, 1 De G. F. and J. 63; Seyton, ut supra. 6 Smith v. Kerr, 5 June, 1869, 7 M. 863. The policy was on the wife's life, but this does not affect the point. See Walker's Executor v. Walker, 19 June, 1878, 5 R. 965; Buchan v. Porteous, 13 Nov. 1879, 7 R. 211.

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