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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bonner's Trustee v. Bonner [1902] ScotLR 39_532 (15 January 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0532.html Cite as: [1902] ScotLR 39_532, [1902] SLR 39_532 |
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Page: 532↓
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Process — Reclaiming-Note — Adversary's Reclaiming-Note Taken Advantage of for Sole Purpose of Bringing Findings as to Expenses under Review — Competency — Expenses.
A testamentary trustee under a settlement by which the testatrix conveyed her whole estate to him for behoof primo loco of a son who had disappeared, brought an action against the testatrix's husband for recovery of a certain sum in the defender's hands. Apart from the sum so sued for there was no asset falling under the trust. The defender was assoilzied. Held that he was entitled to expenses against the pursuer, there being nothing in the circumstances to prevent the application of the ordinary rule that expenses should follow the result.
Held that it was competent for the respondent to proceed with a reclaiming-note, which was not insisted in by the reclaimer, for the sole purpose of submitting to review the Lord Ordinary's findings as to expenses.
This was an action at the instance of the trustee on the testamentary estate of Mrs Elizabeth Fullerton Abel or Bonner against her husband Robert Bonner, in which the pursuer concluded for payment of a sum of £1100.
The action was ultimately unsuccessful. The questions upon which the case is now reported were (1) Whether the defender was in the circumstances entitled to expenses against the trustee; and (2) Whether the defender was entitled to take advantage of a reclaiming-note brought by the trustee but abandoned by him in order to bring the Lord Ordinary's interlocutor under review in so far as it found no expenses due to the defender. It appeared that apart from the sum claimed in the action there was no trust estate.
Page: 533↓
The following narrative of the facts is taken from the opinion of the Lord Ordinary (
Kincairney ):—“This case relates to a sum of £1100, which is claimed on the one hand by the trustee under the disposition and settlement of Mrs Bonner, who died on 8th October 1900, and on the other hand by her husband. Mr and Mrs Bonner were married in 1879, having executed an antenuptial contract of marriage which did not apply to acquirenda. In 1880 Mrs Bonner succeeded to a sum, including the £1100 in question, on the death of her father. On 24th February 1881 the spouses executed a mutual settlement whereby they each conveyed to the survivor their whole estates, and in particular £1100, which it was stated in the deed ‘has been advanced to me, the said Robert Bonner, by my said wife, to purchase my business premises in Upper Kirkgate, Aberdeen, out of her separate funds acquired through her father.’For ten years before Mrs Bonner's death she and her husband lived separately, and on 9th August 1900 she executed a trust-disposition and settlement, by which she conveyed to the pursuer as trustee her whole estate for behoof of her son by a former marriage, who had disappeared, and failing his reappearance within five years, then in charity, and she recalled all former settlements made by her.
After the debate the pursuer amended his record by adding an averment that Mr Bonner renounced his jus mariti over the estate in question, but he does not say when or on what occasion this was done; the defender has denied the statement, and has averred that if he did, the renunciation operated as a donation inter virum et uxorem which was revocable and was then revoked.”
On 11th June 1901 the Lord Ordinary assoilzied the defender, and found no expenses due to or by either party.
Note.—[ After the narrative quoted above the Lord Ordinary proceeded]—“I am of opinion that there is no need for further inquiry, and that the defender must succeed.
Seeing that the parties were married in 1879, and that the wife succeeded to the money in question in 1880, the provisions of the Married Women's Property Act do not apply, and the right to the money when Mrs Bonner succeeded to it undoubtedly passed to the defender jure mariti. It was, however, maintained by the pursuer that the jus mariti had been renounced, and that the property of the £1100 was thereby re-transferred to Mrs Bonner. The pursuer maintained that without express renunciation of the jus mariti such renunciation might be inferred, and ought to be inferred, from the language of the mutual settlement, or otherwise that the mutual settlement might be regarded as proof that the jus mariti had in fact been renounced. The cases of Wright's Executor v. City of Glasgow Bank, January 24, 1880, 7 R. 527, and Smith v. Smith's Trustee, November 26, 1884, 12 R. 186, were referred to as showing that the jus mariti might be held to be renounced by inference and without express renunciation, and they sufficiently establish that general proposition. But I am not prepared to give that effect to the mutual settlement if, as the pursuer contends, it has been revoked. At all events, if the deed could be held as involving by implication a renunciation of the jus mariti, it could be so held only on the condition that it would be effective as a settlement of the £1100 to the survivor. The defender maintained that Mrs Bonner's will could not be held to revoke the mutual settlement, and that she had not power to revoke it, and he put the dilemma that if the mutual settlement was not revoked it effectually conveyed the £1100 to the defender as survivor, and if it was revoked the right of the defender under his jus mariti was left unaffected.
It was, I suppose, to meet this difficulty that the pursuer added the averment that the jus mariti had been renounced. No date and no particulars are given, and I rather think that the averment is irrelevant for want of specification. But in any view it seems to be met by the defender's answer that such a renunciation amounted to a donation inter virum et uxorem by him, and was revocable by him, and was effectually revoked— Ker v. Nelson, May 14, 1875, 2 R. 676.
I am of opinion that the defender is entitled to the sum of £1100.”
The pursuer reclaimed, but abandoned his reclaiming-note.
The defender took advantage of the pursuer's reclaiming-note for the purpose of bringing the Lord Ordinary's interlocutor under review in so far as it found no expenses due to or by either party, and argued—The defender having been brought into Court and assoilzied was entitled to expenses, and he was not deprived of that benefit merely because the pursuer was a trustee. The fact that the defences were so formidable as to necessitate an amendment of the pursuer's record did not affect the right of a successful defender to expenses.
Argued for the pursuer—Mrs Bonner's trustee was bound to raise the action in discharge of his duty to safeguard the interest of her absent son. The dilemma put by the Lord Ordinary led to this result according to the conclusion arrived at by his Lordship, that in any event there was no trust estate, and if the defender was found entitled to expenses, that could only be a finding against the trustee personally; but that would be a great hardship, because when the action was raised the alleged donation whereby the defender renounced his jus mariti was unrevoked so far as regards any expression of intention on the part of the defender was concerned, and the trustee was bound to set up Mrs Bonner's settlement if possible. Even though the Court were of opinion that the Lord Ordinary might reasonably have decided differently, the case was not one in which the Court would alter the Lord Ordinary's finding on a question of
Page: 534↓
expenses— Bowman's Trustees v. Scott's Trustees, February 13, 1901, 3 F. 450, 38 S.L.R. 557.
The reclaiming-note has been abandoned by the trustee, but the defender has taken advantage of the reclaiming-note to bring under review the Lord Ordinary's finding as to expenses. There can be no doubt that it is competent to take advantage of an adversary's reclaiming note in this way, even if the only question raised is the question of expenses.
Upon the merits of the question I confess I see no reason why the ordinary rule as to expenses was not followed in this case, and why expenses were not given to the successful party. It may be true that in the absence of Mrs Bonner's son it was right and proper for the trustee upon her estate to bring the question of Mr Bonner's right to the sum in question before the Court, but he was bound to do so at his own cost if unsuccessful. The action was nothing but an ordinary claim by one litigant against another, and there was no reason why, in a question between them the ordinary rule as to liability for expenses should not be followed. It is unfortunate for the pursuer that there is no trust estate from which he might have been entitled to be indemnified. He was bound to consider this circumstance before beginning the litigation, and in any case it is a circumstance with which the defender has no concern.
Accordingly I am of opinion that the defender is entitled to be assoilzied with expenses, and that the Lord Ordinary's interlocutor should be altered to this extent.
The only specialty is that the trustee in this case has no trust funds, but that does not seem to me to afford any reason why the ordinary rule as to expenses should not be followed.
The
The Court found the defender entitled to expenses, and quoad ultra adhered.
Counsel for the Pursuer and Reclaimer— Guthrie, K.C.— Chisholm. Agent— R. C. Gray, S.S.C.
Counsel for the Defender and Respondent— C. D. Murray. Agents— Alexander Morison & Co., W.S.
