Scottish Court of Session Decisions

John Miller of Leithen died on 8th May 1883, survived by four daughters, of whom Mrs Webster, wife of John Webster, Esq., of the Inner Temple, was one. By the seventh purpose of his trust-disposition he directed his trustees to implement the obligation undertaken by him in a bond and discharge entered into in 1874 in contemplation of Mrs Webster's marriage (by which he bound himself to pay £10,000 to the trustees therein named, the annual income to be paid to Mrs Webster during her life, and the capital to her children on her death, which provision she accepted in full of legitim and other claims), and he further directed his trustees to hold and administer the sum of £4000 (made up of a freehold in Somerset worth £1500 and £2500 in money) “for the children of my said daughter Jessie Miller or Webster who may be alive at my death, equally, share and share alike,… and (with the exception under mentioned) yearly to receive and accumulate and invest for behoof of the said children respectively the annual income, interest, or proceeds of their shares of the said” sum of £4000, “and on the said children respectively attaining majority, to pay and make over to them respectively not only their equal shares of the said” sum of £4000,“but also any income, interest, or proceeds that may have been accumulated in respect of their said shares, and in the event of any of the said children surviving me but predeceasing majority the share of such predeceasing child shall accresce and belong to his or her surviving brothers and sisters equally among them; but I hereby declare, notwithstanding what is above written, that in the event of the said John Webster predeceasing me, or on his death if he shall survive me but predecease the majority of all or any of the said children, then my trustees shall have power to pay to the said Jessie Miller or Webster, or in the event of the death of the said Jessie Miller or Webster, whether before or after the death of the said John Webster, to lay out at their own discretion for behoof of the said children respectively, the whole, or such part or portion as they may think right, of the income, interest, or proceeds of the shares of the said children, for the education, maintenance, and upbringing of the said children respectively, aye and until they respectively attain majority, but that always only after the death of the said John Webster.”

By the thirteenth purpose the truster further directed a fourth of the residue of his estate to be held and administered for behoof of Mrs Webster's children in the same manner as the £4000 above mentioned, and he also, under the same conditions, made another contingent provision in favour of the children, but there was no other provision beyond the £10,000 in favour of Mrs Webster herself.

At the date of the truster's death there were three children of the marriage of Mr and Mrs Webster—a son, John Alexander, who was born on 23d November 1874, and two daughters, Mary Elise and Isobel Kennedy, born respectively on 9th December 1880 and 20th November 1881.

This petition was presented to the Second Division of the Court of Session by the children, together with John Webster, their father, and in it they prayed the Court to authorise Mr Miller's trustee to pay over to the petitioner John Webster, as administrator-in-law and for behoof of the other petitioners, the children, so much of the income of the sums of money and share of residue provided to the children by the trust-disposition and settlement as the Court might deem sufficient for their proper maintenance and education, having regard to their position and prospects in life; or alternatively, to authorise and grant warrant to the trustees to advance and pay to the petitioner John Webster, as administrator-in-law and for behoof foresaid, the following sums out of the capital of the said sums and share of residue, viz., £90 for behoof of John Alexander, £60 for behoof of Mary Elise, £50 for behoof of Isobel Kennedy, to be continued for four, five, and six years respectively, or for such other periods as the Court might appoint.

The alternative prayer was founded on the 7th section of the Trusts (Scotland) Act 1867 (30 and 31 Vict. cap. 97), which enacts—“The Court may from time to time, under such conditions as they see fit, authorise trustees to advance any part of the capital of a fund destined either absolutely or contingently to minor descendants of the truster, being beneficiaries having a vested interest in such fund, if it shall appear that the income of the fund is insufficient or not applicable to, and that such advance is necessary for, the maintenance or education of such beneficiaries, or any of them, and that it is not expressly prohibited by the trust-deed, and that the rights of parties, other than the heirs or representatives of such minor beneficiaries, shall not be thereby prejudiced.”

The petitioners stated that the whole income of Mr and Mrs Webster from every source did not exceed £380 per annum, which was insufficient to enable them to maintain themselves and to educate and maintain their children in a manner suited to their position and prospects in life that John Alexander Webster, the eldest child, who was now twelve years of age, had received a good education, and the promise of a nomination to a naval cadetship, to secure which it was imperative that he must go up for competition in June 1887; that his outfit would cost £40, and the charge for board,&c., on the training-ship “Britannia,” to which he was to go, would average £70 a-year, while other expenses would amount to £20; that the income of the parents would not enable them to afford these sums, and that unless the advances craved, or a part thereof, should be made, the benefit of the nomination would be lost; that the two daughters, particularly the elder, were in delicate health, and required the attendance of two nurses, Mrs Webster herself having become almost entirely blind; and further, that their education must now be provided for. They also stated that the accumulations

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of income to which the children would be entitled on majority were estimated thus—for John Alexander, £1787; Mary Elise, £2784; Isobel Kennedy, £2965; and the total shares, including accumulations, to which they would be entitled, exclusive of their interest in the £10,000 liferented by Mrs Webster, were—for John Alexander, £5933; Mary Elise, £6931; Isobel Kennedy, £7112; further, that the children had a contingent right to one-third of £25,000 provided to their aunt Miss Miller under the settlement.

The trustees lodged answers, in which they stated that they “agree with the petitioners as to the reasonableness of the amounts of the proposed annual payments to the children, and they are further of opinion that it would be greatly for the benefit of the children themselves that the proposed payments should be made. Having regard, however, to the terms of the trust-deed, they are advised that they cannot make the proposed annual payments except under the authority of the Court, and in the interest of the beneficiaries they respectfully submit that it is desirable that such authority should be granted.”

The petitioners argued—(1) This petition was competently presented in the Inner House, it being an appeal to the nobile officium of the Court. The 16th section of the Trusts Act, which provided that application under the Act should be brought in the first instance before the Lord Ordinary, did not apply. The Distribution of Business Act enumerated the petitions to be presented to the Lord Ordinary, but this class was not in thelist—Mackay's Court of Session Practice, i. 218.(2) Looking to the facts disclosed in the petition, this was a case of such strong expediency and urgency, that the Court might grant the prayer for advances so far as they concerned the annual income of the capital of the estate— Latta, June 5, 1880, 7 R. 881. It was true that in the previous case which dealt with this question, with reference to the children of Mrs Thomson, another of Mr Miller's daughters, the Court had refused a similar application. But in that case all the Court refused to allow was that the capital should be tampered with. There too the trustees opposed the petition, while here they concurred in thinking it reasonable, only desiring the authority of the Court to the proposal— Thomson,&c. v. Miller's Trustees,December 22, 1883, 11 R. 401.

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