Scottish Court of Session Decisions

Charles Muirhead, poulterer, &c., died on May 23, 1865, survived by his widow and by four children, Charles, James, Mrs Agnes Christie, and Mrs Jessie Crellin, who died without issue in 1866. He left a trust-disposition and settlement dated 18th July 1861, by which he conveyed his whole estate to trustees, but the trustees named having either predeceased or declined to act, a judicial factor was appointed on the trust-estate.

By the said trust-deed Mr Muirhead directed—“( Fourth) My said trustees are hereby directed to draw the revenue of all my estate not above disposed of during the life of my said wife, and to accumulate the revenue, after paying my wife's said annuity, with the principal; ( Fifth) As soon after the death of my said wife as convenient, my said trustees are hereby directed to dispone, assign, convey, and make over to my said daughter Agnes Muirhead, exclusive of the jus mariti and right of administration of any husband to be after the date hereof married by her,” certain heritable subjects. Certain specific provisions followed in favour of the testator's other three children; and the settlement provided ( ninth) for the division of the residue into four equal shares, for the benefit of the four children respectively,

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Mrs Christie's share to be paid over to her or invested for her behalf, “exclusive of the jus mariti or right of administration of any husband to be after the date hereof married by her.” It was further provided that “if any of my children predecease the term of payment of their provisions under this deed, the said provisions shall lapse and become part of the residue of my estate, unless in the event of the predeceasing child or children leaving lawful issue, in which case such lawful issue shall succeed, equally among them, to the provisions their parent would have received had that parent survived the term of payment foresaid; and in the event of the predeceasing child dying without lawful issue, and that child's provisions becoming part of the residue of my estate, my said trustees are directed to divide the residue of my estate into as many shares as I have children surviving the said term of payment, or children who, though dead, have left lawful issue, and to pay over, divide, and invest the same in the proportion of one share to each surviving child, and one share to the children of each deceasing child who has left lawful issue.”

The widow, Mrs Muirhead, who was aged 79 at the date of this petition being presented, declined to accept the provisions in her favour under the trust-deed, and claimed and received her legal rights instead. Mrs Christie had four children, the eldest aged nine, her husband followed no occupation, and their only income consisted in the interest of a sum of £1280 invested in the names of their marriage-contract trustees, and the liferent of the cottage in which they lived. By their marriage-contract, dated in 1868, the provisions to which Mrs Christie was entitled were assigned to certain trustees for the purpose, inter alia, of paying the income or interest thereof to her for her own exclusive alimentary use and behoof, expressly excluding the jus mariti and right of administration of Mr Christie, who, if he survived his wife, was to receive the income as an alimentary provision. On the death of both spouses the capital was payable to the children, whom failing as therein mentioned.

The judicial factor, Mr Latta, S.S.C., presented a petition for special powers. He stated that the annual income of the trust-estate to be accumulated in terms of the trust-deed was £600, and that the trust-estate was at the date of petition divisible among Mrs Christie and her two brothers, under the directions of the deed, the share of capital to which Mrs Christie would be entitled, and to which with further accumulations and subject to the provisions of her marriage-contract she or her children would be entitled on the death of the truster's widow, must be estimated by him at £6400, the annual income from which, under certain necessary deductions, would be about £200. The petitioner stated that Mrs Christie's present income being quite inadequate to clothe and educate her family, she desired (with concurrence of her husband) to receive an instalment to account of the interest of her share in the trust-estate, and craved authority from the Court for a payment of £150 per annum for the maintenance of herself and her children, to be deducted from such share. Mrs Christie's brothers Charles and James Muirhead signified their approbation of this arrangement.

The Lord Ordinary ( Adam) refused the prayer of the petition. His Lordship added this note:—

“ Note.—The period of division of the residue of the trust-estate in this case is the death of the truster's widow.

On that event taking place the truster directs his trustees to pay one-fourth part of the residue to his daughter Agnes, now Mrs Christie. In the event of her predeceasing the period of division without issue, her share will lapse. If she leaves issue, her issue will take her share.

The truster's widow is still alive, so that the period of division has not come. Mrs Christie has consequently as yet no vested interest in the residue.

The surplus income of the estate is directed to be accumulated till the period of division, so that Mrs Christie derives no immediate benefit therefrom. Mrs Christie has four children, all under the age ten. The amount of the residue to which she or her children will become entitled is estimated at £6400. Mr and Mrs Christie's present income amounts to £55 per annum and the liferent interest of a cottage in which they reside.

In these circumstances the judicial factor on her father's estate asks authority to make payment to her of £150 per annum ‘for her maintenance, and for the maintenance and education of her said children.’

In so far as authority is asked to pay any sum for the maintenance of Mrs Christie, the Lord Ordinary has no power to deal with the application.

The application to authorise payments to be made for the maintenance and education of the children is founded on the 7th section of ‘The Trusts (Scotland) Act 1867.’

The children are minor descendants of the truster, but the Lord Ordinary does not think that they are in a position of minor descendants to whom the Court can authorise trustees to make advances out of the capital of the trust-estate. It is clear that if the succession were now to open, the capital of the fund in question would vest, not in them, butin their mother Mrs Christie. They are not beneficiaries who have the primary interest in the fund; they are therefore not beneficiaries having a vested interest in that fund, interpreting these words as they were interpreted by the Court in the case of Pattison, Feb. 19, 1870, 8 Macq. 575, and in which the Lord Ordinary concurs.”

The petitioner reclaimed.

The application, so far as concerned the children, was originally made under sec. 7 of “The Trusts (Scotland) Act 1867,” but in the Inner House the petitioner appealed entirely to the nobile officium, of the Court.

Authorities— Hamilton, July 20, 1859, 21 D. 1379; Briggs, Dec. 4, 1869, 8 Macph. 242.

At advising—