Scottish Court of Session Decisions

By his trust-disposition and settlement Stephen Adam conveyed his whole estate to trustees, directing them to hold the shares falling to daughters during their lifetime, and to pay to them, or apply for their behoof, the annual income of such

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shares. No direction was given to the trustees with regard to the fee of the shares liferented by daughters dying in minority.

The truster died on 25th May 1889 survived among other children by a daughter, Helen, who on 15th April 1884 had married Thomas Rowley Seddon. She died on 13th May 1891 after having attained majority, and leaving two children, the elder being three, and the younger less than one year old. During her lifetime her father's trustees had duly paid her the income of the share of his estate falling to her.

On 9th September 1891 Thomas Rowley Seddon presented a petition to the Court “for himself and for his children,” and “with consent and concurrence” of Stephen Adam's testamentary trustees.

The petitioner stated—“The value of the share of Mr Stephen Adam's estate belonging to Mrs Seddon's children (which had not been realised) is estimated at between £7500 and £8500, and the free annual income in respect thereof is estimated at between £300 and £400. There being no provision in Mr Stephen Adam's trust-disposition and settlement for keeping up the said trust after his daughters' respective deaths, to the effect of holding the shares of said daughters for behoof of their issue, the said shares go to the issue of the daughters without limitation of any kind. The petitioner, however, does not desire the trustees to denude of the said trust so far as his children's shares are concerned, but has requested them to retain the management thereof for his children's behoof. The petitioner is not at present in a position out of his own funds to maintain and educate his said children suitably to their positions and fortunes, having in or about March 1890 been obliged, owing to his wife's then delicate state of health, to give up a lucrative appointment as manager of a sheep-run in New Zealand with a salary of £300 a-year, and although he has lately, with the assistance of friends, acquired for himself and another an extensive sheep-run in New Zealand, it will, owing to the arrangements on which he has obtained the purchase money for the same, be a considerable number of years before he can apply any of the profits arising therefrom to his own uses. The petitioner was born in England, but had been resident in New Zealand for thirteen years prior to his return to this country as before mentioned, and he is about to return to New Zealand in the beginning of October 1891 in order to take possession of the property there acquired by him, and to have the same made suitable as a home for his said children, intending to return to England for them within a year. It is therefore necessary that an immediate arrangement should be made with a view to the maintenance of said children. The petitioner has requested Mr Stephen Adam's trustees to pay him the free annual income of his children's means, but he being domiciled either in England or in New Zealand, and the laws of these two countries applicable to the administration of estates belonging to pupils being similar, they are advised that they would not be in safety to make such payment without your Lordships' authority. They have, however, no objection to state to the prayer of this petition being granted, and are ready and willing to deal with the income in question by paying to the petitioner, or otherwise as your Lordships may direct.”

The petitioner therefore craved the Court to ordain the testamentary trustees of Stephen Adam to make payment to him “for behoof of his children … of the free yearly interest, or other free yearly income for the time, of the sum to which the said children are entitled under the said trust-disposition and settlement, or otherwise to ordain the said trustees to make payment to the petitioner of such portion of the interest or other free annual income of the said sum as to your Lordships may seem proper for the suitable maintenance and education of his said children.”

On 18th September 1891 the Lord Ordinary officiating on the Bills ( Stormonth Darling) remitted to Mr James Mylne, W.S., “to inquire into the circumstances stated in the petition, and to report quam primum whether the whole, or if not what proportion, of the income available would be a proper allowance for the maintenance and education of the children.”

Mr Mylne having reported that it appeared to him that it would be reasonable that the Court should authorise the trustees to pay to the petitioner the whole amount of said income, the Lord Ordinary on 26th September reported the petition to the First Division.

The petitioner argued that there was authority for the application in the case of Edmiston v. Miller's Trustees, July 11, 1871, 9 Macph. 987, and that in the circumstances it was not unreasonable that the whole income of the children's shares should be paid to him.

At advising—