RECTIFICATION OF MARRIAGE SETTLEMENT.

Otago Daily Times, Issue 13945, 3 July 1907, Page 7

RECTIFICATION OF MARRIAGE SETTLEMENT.

JUDICIAL DECISION.

"pie following is his Honor lit Justicc Williams's decision in Chnftcy v. Buttenvortli, a caso in winch application for a rectification of . a marriage Eottlomon-t liad bcon mado by plaintiff. The case was argued last Friday:— It is not because an aotion to rcctify a marringo sottlomcnt is not strenuously defended that tlio court is any tha less bound to cxcrci«> tho greatest care before granting a dcoreo. That is so oven where the eeiilcment is purely voluntary. In such caws, as was said by Kekowich, J., in Bonhote v. Henderson (1895, 1 Ch. 742, 2 Ch. 202), ' It is obvious that the court must anproaoh tho exercise of its jurisdiction with caution ait least equal to that required in dealing with bho investigation of lArgaina; and the difficulty is nocessuril) increased by,the circumstance that in tho nature of things tho court cannot have tho same advantages of criticism and opposition." Nor, as was said by Cotton, in Tucker v. Beimctt (38 C.D., page 1), doos tho court apply to a provision in a marriago settlement, although one of a voluntary character, tho same rules as Hit court nets upon in considering whether a voluntary settlement should be set aside. The deed in the present case, however, was muoh more in tho nature of a .voluntary settlement than tho ordinary marriage settlement is! Ordinarily the instrument is one under which thoro aro mutual 'contracts between the husband and tho wife, the husband contracting to do something on his part in consideration of tho wife contracting to do something on lier part. Hero tho husband got nothing and gave up nothing, and conteaoted to do nothing. He brought nothing into settlement, but was joined simply for the purpose of assenting to tho wife's disposition of her property. In this particular therefore the circumstances of tho present case differ from those in the case of Tucltor v Bennett (38, C.D., 1). Thero the terms of tho settlement had been the bul)joet of negotiation, and had been arranged on Jjohalf o£ tho wife" and .with tho husband by. th? wife's father prior to the execution of tho settlement. Tho husband brought in money oi his part, and tho wife's father on her part. Hero there was nothing of tho kind. Thero was no bnrgnin with the husband at all. It was immaterial to him whfcther tho wife did or did not make a settlement. So far a® he was concerned it was a purely voluntary disposition by hor of her own propctry, to which he offered no objection. ! If instead of havihg been made a party to tho deed Mr Chaffoy had simply endorsed his coiismvt on it tho deed would havo hnd practically the saino effect, fa at present. Tho consideration of marriago may take tho instrument out of the category of purely voluntary settlements, but it haa most of the characteristics of iv voluntary .inotrument. In Tucker v. Bonnott tho settlement had beon executed prior to the Maniod Women's Properly Act. Tho huebiuid, therefore, in becoming party to a died.settling the wife's nttor-iicquirod property thereby gavo Up tho right to tjiat property'which the law iw, it then stood would have given him. In the, present caso no such right was given up becauso none existed. Tho case of Tuckcr v. Dennett lias a Considerable bearing upon tho present, and, boforo giving tho relief claimed it is necessary' to bco clearly that the present case is distinguishable from it. I have already dUtinguished it in one particular, and I think it is distinguishable in others. The oourt "thoro hold that the father was tho agent of tho daughter to liind hor to the seltlomant even if it had not beon explained to heT and if flho had not thoroughly understood and assented to it (per Lopos, L.J,, pago 17 of report). Horo it cannot bo said that Dr Lindo Porguson and Mr 0. Buttcrworlh were mich agents, They never prctemW to take up that position. In Tuokor v. Bennett it was tho father's money that was settled, and all tho lady's expectations were from tho father. Evorything, therefore, was and ought to have bceu left to him to arrange. Hero the property was absolutely Miss Buttorworth's own. It was for her and nobody clso to say how it was to ba disposed of, though it was quito aright and natural that her brother and brother-in-law should assist her in tho matter. The questions then are whether Mrs Chaffey was informed of and assented to the settlement being drawn in Buch a way as first to excludo her children by a second marriage and secondly to hind her to bring .into settlement her aftoracquired property. As to the first question, I am satisfied she did not understand such children wore excluded. Her intention was that hor property should go to hor sister only Jf ,ehe died without children. In this respect the sottlement did not carry out her intention, nor was thero any intention on tho part of.anyone else to cxcludo such children. It was in no sonsd part of tho scheme of the' settlement that thoy should be excluded. As to the sccond question, I think tho ovidenco sufficiently' shows that Mrs Chaffey did not intend that tho settlement was to include her after-acquired property, aud did not understand that it was included in it. In the absence of an express contract or arrangement- between the parties that a covenant to setfie after-acquired property was to bo inserted.in a ! settloment the insertion cannot bo • compolled (re Maddy, 1901 2 Oh. 820), Apart from tho preciso legal aspect when a lady about to bo married is asked to settlo her property, and consents to do so, sho would naturally suppose sho was goifig to settle what she then had, and not anything that sho might by any possibility acquiro during tlio whole of her married lite,. If a . clause • settling afteracquired property is inserted, her attontion ahouM l>o distinctly called to it, unloßS frpm what had previously happened she must have uocu awaro of-the intention to insert it. In the present case the instructions wevo given without consultation with her. She savs she was never informed beforehand that such a clause was to he inserted; There is no evidonco slio was so informed, and I should conclude she was not informed. When she went to Sir Hosking's office and the deed was rond ovor there would havo been no reason for her to anticipate that the deed would deal with her after-acquired' property. Sho had never expressed ' any intention or nssonteu to any instructions Wing given that th« deed should comprise it, Nor had sho uny prosent testamentary expectations. It was then supposed that hor Aunt Elizabeth had loft her money to her nephow. There is nothing to show that he'r attention was specially drawn to tho clauso relating to it. I can quite understand how a lady inexperienced with respect to legal documents would fail to comprehend (lie fact that such a clauso wns there. Mrs Chaffey says with great distinctness what Iter intentions woro and what her knowlodgo was, and that she was not awaro tho settlement included her after-acquired property. Tlio circumstances 01, tho ease rather confirm than contradict hor statement. . That sho believed the settlement contained no such clauso is shown by , 0 tet t!lat lnter - 011 tlle death of her Aunt 'Elizabeth, sho applied for the rcvoreionary liutrest which then camo into possession thinking B ho was entitled to receive it. llus reversionary interest was specially included in tho settlement, and was not afteracquired properly, That confirms her stateuicnt that hor intention was to settle only her life interest under her father's will, and her property coming frotu her Aunt Jlary, and that sho'thought, that was all she had sotjlid. If she did not clearly apprehend that _tho reversionary property was included, still .less would, she be likely to comprehend that after-acquired property was included. Her statement of claim in tlio first insfanco asked for a rectification in respect of the reversionary property also, hut this claim was afterwards withdrawn. There is no need, therefore, to consider how far it could have beon supported, but that property was part of the property which belonged to her, and which, if she had been Fettling hot property in contemplation of marriage, would presumably' havo been included in' the settlement. ■ Different conflidcrations apply to after-acquired property. .That Mr Chaffey was unaware of the clause ; ca n quite believe. His only c'aro was that he incurred no liability by boing made i party to the settlement, I attribute no woight to the ci:«umslanco -that Mr Chaffey asked for and obtained a copy of the settlement shortly after tho marriage. Ho knew ■that ho took no interest .in it, and thero is no reason to supposo that ho or Mrs Chaffey read and studied it, or that ho wanted it for any other purpose than to keep among his papers 1o he referred to ■when occasion arose for referring to it. I think, iheroforo, that tho plaintiff has s made out case, and is entitled to a decree fot rectification in terms of the prayer of the gUtomont of claim. As I said at the hearing, no possiblo blame attaches to Mr Hosking for anytliing ho did or omitted to do in the matter. Tho question o: costs was allowed to stand Over.