John James Erskine Brown and another (George Scott's Trustees) v Amy Hindmarsh Scott (1882) 9 R. 798
Facts of the case were:
George Scott , merchant, Prince of Wales Island, East Indies, was in the year 1834, married to Miss Lucy Grace Brown, daughter of the deceased David Brown, merchant, Penang. In prospect of the marriage are antenuptial contract, dated 11th November 1834, was entered into between the parties. By this deed Miss Brown conveyed her whole means and estate to trustees therein named, for payment, first, of the expenses of the trust, and thereafter for the following purposes:—“Second, that the said trustees shall hold, and pay and apply the interest and profits of the said trust-moneys,” to the said Lucy Grace Brown “and in the event of the said George Scott surviving the said Lucy Grace Brown, the said trustees shall pay such interest or annual proceed of the said trust-estate to the said George Scott. Third, that the said trustees shall, after the decease of the longest liver of the said George Scott and Lucy Grace Brown, pay over the principal sum or stock to the child or children of this intended marriage, in terms of a joint deed to be executed by the said George Scott and Lucy Grace Brown at any time Declaring that, in the event of the death of either of them without making such division, the survivor shall have the same power; and in case no division shall be made in manner before mentioned, then the said stock or principal sum shall belong to and be divided among the children share and share alike, and in case there shall be no children of the said marriage, or if there shall be children, in case the whole of the said children shall die before the term of payment of their shares of the trust moneys, then and in either of these events, it shall be competent to and in the power of the said Lucy Grace Brown, by any deed or last will, to assign or bequeath all or any part of the said principal stock or sum *799 to such person or persons as she shall think fit. And lastly, in the event before specified of there being no children of the said intended marriage, or in case the said children shall die before their shares become due and payable without having lawful issue of their bodies, then the said principal sum or stock shall go and be payable to the heirs whatsoever of the said Lucy Grace Brown.”
The funds the trustees under the said marriage-contract received from Miss Brown amounted to £2250.
Five children were born of this marriage.
Mrs Lucy Brown or Scott died in 1844. During her life no deed was executed by the spouses apportioning the trust-funds among the children.
On 13th August 1875, at which date the only surviving children of the marriage were George Smyth Scott and Margaret Brown Scott, Mr George Scott executed a deed of appointment in the English form of the said trust-funds, whereby he allocated two-thirds of the fund to George Smyth Scott and one-third to Margaret Brown Scott. This deed was delivered to George Smyth Scott. On 23d July 1877 George Smyth Scott assigned the sum apportioned to him to Messrs Brown & Co., merchants, Penang, in security of a loan.
George Smyth Scott died on 28th July 1877, leaving an only child, Amy Hindmarsh Scott.
George Scott died on 7th November 1880, and it became the duty of the trustees under his marriage-settlement to pay the said sum of £2250 held by them on the trusts contained in the said marriage-contract to the parties entitled thereto. Competing claims having arisen in regard to the two-thirds of the said sum apportioned to George Smyth Scott, this special case was presented for the opinion and judgment of the Court. The trustees under the marriage-settlement were the first parties thereto, Miss Amy Hindmarsh Scott, the second party, and the Messrs Brown, the third parties.
Miss Amy Hindmarsh Scott, the second party hereto, maintained that she was entitled to the said two-thirds of £2250, on the ground that the provisions contained in the marriage-contract of Mr and Mrs George Scott did not vest in the children of the marriage until the death of the survivor of the spouses; and that she was entitled to her father’s share. Messrs Brown & Company, the parties of the third part, on the other hand, maintained that the said two-thirds of the said sum of £2250, vested in the said George Smyth Scott during his life, and was carried by the assignation in their favour contained in the said indenture of 23d July 1877.
The following question was stated for the opinion and judgment of the Court of Session:—“Is the second party entitled to the two-thirds of the said sum of £2250 appointed to her father by the said deed of appointment, or were the said two-thirds carried by the assignation in favour of the third parties granted by the said George Smyth Scott?”
The court of four judges unanimously found in favour of Amy Scott and made the following order -
"Find and declare that the second party is entitled to the two-thirds of the sum of £2250 appointed to her father by the deed of appointment mentioned in the case, and that the said two-thirds were not carried by the assignation in favour of the third parties granted by the deceased George Smyth Scott, and decern: Find the third party liable in expenses,” &c.
