1.

SECOND DIVISION.

(The Lord Justice-Clerk, Lords Salvesen and Guthrie.)

22nd December 1911.

Coats v. Bannochie's Trustees.

I. Husband and wife-Contract-Married womanCapacity to contract-Undertaking by wife to her father that husband's debts "shall form a debt due by me and a deduction from my share of your means and estate "-Held that the undertaking was binding on the wife, and that the father's trustees were entitled to retain the wife's share of the estate as against the husband's debts.

II. Husband and wife-Contract-Married womanCapacity to contract Separate estate-Held that a spes successionis may be validly assigned by a married woman.

Reclaiming Note against an Interlocutor of
Lord Ormidale.

Mrs Mary Jane Bannochie or Coats brought an action against George Mitchell and others, the trustees acting under the trust disposition and settlement of her father, the late James Bannochie, for declarator that, as one of the children of Mr Bannochie, she was entitled to legitim out of his estate, and for payment of the amount of the legitim.

The defenders averred:

to any

STAT. 1. On 10th June 1902 the pursuer executed and delivered to the truster a holograph writing in the following terms: "I, Mary Bannochie or Coats, wife of and residing with Thomas Archibald Coats, S.S.C., Aberdeen, do hereby undertake and agree that in the event of my said husband being indebted to you, James Bannochie extent at the time of your death, whether by way of obligation to any bank or bill or otherwise on any document held by you, the amount of said indebtedness shall, unless and until liquidated by the said Thomas Archibald Coats, form a debt due by me, and a deduction from my share of your means and estate. Adopted as holograph. MARY COATS."

Said writing was executed by the pursuer with consent of her husband, who appended thereto the following docquet: "I approve and confirm the

above.

THOMAS A. COATS,"

STAT. 2. At the date of the truster's death the said Thomas Archibald Coats was due the truster, inter alia, the sum of £1194, 18s. 5d. . . . Said sum has not been paid by the said Thomas Archibald Coats, who became bankrupt on or about 16th December 1907, and is irrecoverable out of his estate. In terms of said writing of 10th June 1902 said sums are deductible from the pursuer's share of the truster's estate. They greatly exceed her share of legitim. . . The pursuer averred in answer:

Ans. 1. Admitted that the said writing was executed by the pursuer, and the said docquet by her husband.... Explained and averred that at the time of signing said writing the pursuer was a married woman, and was accordingly incapable of granting such an obligation as the said writing purports to grant; that she was in ignorance of her legal rights in her father's estate; that she had no independent legal advice, and that she received no consideration in exchange for signing said document. Further, the pursuer understood from her father that her share of his means and estate would be largely in excess of all sums advanced by him to her husband.

The pursuer pleaded:

"2. The pursuer having been a married woman at the time she executed the said pretended undertaking or agreement, she is not bound thereby, and the same should be set aside as null and void and of no force or effect as excluding the pursuer's claim to legitim.

"3. The said pretended undertaking or agreement having been granted by the pursuer in ignorance of her legal rights in her father's estate, is not binding on her, and ought to be set aside.

"4. The said pretended undertaking or agreement having been granted without any consideration therefor, and for an indefinite amount, is null and void, and ought to be set aside." The defenders pleaded:

"2. The defenders being entitled to set off against the pursuer's legitim the debts due by her husband to the truster at his death, and said debts being in excess of the pursuer's share of legitim, the defenders are entitled to absolvitor."

On 25th February 1911 the Lord Ordinary

Lord Ormidale.-Mr James Bannochie died on 29th June 1909. This is an action at the instance of one of his children-Mrs Coats-against his trustees and executors for payment of legitim.

The defenders plead that they are entitled to set off against the pursuer's legitim the debts due by her husband to her father at the time of his death, and that as these debts are in excess of the pursuer's share of legitim, they are entitled to absolvitor.

The right to set off these debts depends on the nature and effect of a holograph writing, admittedly executed by the pursuer, dated 10th June 1902.

It is quoted in the defenders' Statement 1. The pursuer maintains that it is a cautionary obligation and nothing else. It is not disputed that if this is so it is not binding on the pursuer, she being a married woman.

In my judgment the writing is not a cautionary obligation, except perhaps in the sense that the bond and assignation in security by Mrs Halkett was a cautionary obligation in the case of the Reliance Mutual Life Assurance Society v. Halkett's Factor (1891, 18 R. 615), for I think that here, as there, the wife did agree to interpose her personal credit for the purpose of assisting her husband. But she did not do so by becoming cautioner for him. The writing, if not, strictly speaking, an assignation, is of the nature of an assignation. No doubt the right to claim legitim did not vest in the pursuer until her survivance of her father, and, so regarded, is a mere spes successionis. But it seems to me to be none the less susceptible of being dealt with prior to the parent's death. It may certainly be satisfied, in whole or in part, by advances made to a child by a parent during his lifetime, and as certainly it cannot be gratuitously defeated by the parent. In any view of the right, the pursuer's legitim was at her own absolute disposal. It was her separate estate, and she was, it seems to me, entitled to deal with it in any way she pleased (Biggart v. City of Glasgow Bank, 1879, 6 R. 470; Barnet v. British Linen Bank, 1888,

25 S.L.R. 356).

What she did do here, if not to assign it in security, was to give her father a mandate to treat it as a fund of credit for her husband, and to authorise him to debit it with the amount of any advances made by him to her husband. The essence of a cautionary obligation is that the cautioner becomes personally bound along with the principal debtor. Here it may be noted that at the date of the holograph writing there was no principal debtor, for there was no principal debt. The wife's transaction with her father constituted an independent and substantive agreement. Moreover, she came under no personal obligation at all-none, at any rate, which the defenders are under any necessity, by action or diligence, of enforcing against her.

If the writing had concluded with the words "shall form a debt due by me," there might have been room for the plea that there was a personal obligation of a cautionary nature. But I read these words as entirely separable from, or at most as merely introductory to, what follows. They are not the words on which the defenders found. They ignore them, as I think they are entitled to do, and rest their claim on the words "shall form a deduction from my means and estate."

What the wife did, therefore, was to bind, not herself, but her estate, and that has always been

the

I shall therefore repel the second plea in law for pursuer.

On 9th March 1911 the Lord Ordinary pronounced this further interlocutor:

Repels the third and fourth pleas in law for the pursuer, and in respect it is admitted at the bar that at the date of the death of the truster the debts due by the pursuer's husband to the truster were in excess of the sum sued for, assoilzies the defenders from the conclusions of the summons."

The Pursuer reclaimed and argued: The writing of 10th June 1902 was a cautionary obligation (Bell, Prin., section 245), and such an obligation could not be granted by a married woman (Biggart v. City of Glasgow Bank, 1879, 6 R. 470; Jackson v. MacDiarmid, 1892, 19 R. 528; M'Lean v. Angus Brothers, 1887, 14 R. 448; Laing v. Provincial Homes Investment The words "and Co. Ltd., 1909 S.C. 812). shall form a deduction from my share," etc., were ancillary to the undertaking of the obligation, and merely designated the fund out of which the obligation was to be met. Even if the last clause could be read as an assignation

A spes

in security, it was an assignation of a spes successionis, and such an assignation could not be validly granted by a married woman. was not property or estate (Reid v. Morison, 1893, 20 R. 510). It could only be assigned by giving a personal obligation to convey the property if and when it vested (Reid v. Morison, cit., per Lord Rutherfurd Clark at p. 514), and this a married woman could not do. In any event a proof of the averments as to error and want of consideration should be allowed.

Argued for the Defenders: (1) The writing in question was merely an acknowledgment of a debt with an assignation in security. No express words were necessary to constitute an assignation if the intention to assign appeared (Carter v. M'Intosh, 1862, 24 D. 925). Even if the first clause could be read as a personal obligation, which was admittedly void, the assignation in security would still be valid, and that although it was an assignation of moveable estate, and in security of a husband's debts (Ersk., Inst., I. 6. 27; Eleis v. Keith, 1665, M. 5987; Marshall v. Ferguson, 1683, M. 5990; Somervell v. Paton, 1686, M. 5990; Clerk v. Sharp, 1717, M. 5996; Reliance Mutual Life Assurance Society v. Halkett's Factor, 1891, 18 R. 615; Watson v. Henderson, 1802, Hume 208). It was immaterial that the subject assigned was a spes successionis. A spes was clearly an assignable subject (Trappes

la AND 2α