Scottish Court of Session Decisions

This was a petition presented by the Duke of Sutherland, with consent and concurrence of certain trustees acting for behoof of his eldest son the Marquess of Stafford, for the purpose of obtaining the authority of the Court to the trustees to pay to the petitioner out of the income of funds belonging to the Marquess in the hands of the trustees the expenses of the yearly education and maintenance of the Marquess.

The petitioner stated “that the petitioner is heir of entail in possession of the earldom and estate of Sutherland, in the counties of Sutherland and Ross and Cromarty. That the next heir of entail is the eldest son of the petitioner the Right Honourable George Granville Sutherland Leveson-Gower, commonly called Marquess of Stafford, residing at Dunrobin Castle, Golspie. That the said Marquess of Stafford was born on the 29th day of August 1888, and is now in his thirteenth year. That he is the only heir whose consent is necessary to the disentail of the estates of the petitioner. That applications for authority to disentail certain portions of his estate have from time to time since 1895 been made to the Court by the petitioner, and granted. That on each occasion the value of the expectancy of the said Marquess of Stafford has been ascertained, and security for the respective amounts has been given by the petitioner. That it was thought desirable that moneys coming

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to the said Marquess of Stafford in this way should not be administered by the petitioner as tutor-at-law; and, accordingly the said securities, consisting mainly of bonds and dispositions in security granted over portions of the petitioner's estate, were taken in the names of Donald Maclean, Rhives, Golspie, and thomas Murray Mackay, Solicitor Supreme Courts, Edinburgh, as trustees for behoof of the said Marquess of Stafford. The said Donald Maclean and Thomas Murray Mackay recently assumed Mr Cecil Chaplin, banker, London, to act along with them as trustees for the said Marquess of Stafford. That the said trustees act under no trust-deed. That the funds in the hands of the said trustees at 30th June 1900 were as follows:—

Funds at close of last account	£47,299	5	0
Value of expectancy in certain portions of the Sutherland estates received during the year	42,247	0	0
Surplus revenue	1,119	7	3
	£90,665	12	3

That the said trustees therefore receive the annual income upon £90,665, 12s. 3d. in trust for the said Marquess of Stafford, which income amounts to over £2,500 per annum. That the said trustees have repaid to the petitioner the expenses incurred by him in the education of the said Marquess of Stafford up to the month of April 1899. That the trustees, in answer to a request for payment of expenses incurred since April 1899 by the petitioner in the education and maintenance of the said Marquess of Stafford, intimated that, looking to the natural increase in the expense of educating and maintaining the said Marquess of Stafford as he grows older, they would not be in safety in granting the advances craved without the authority of the Court. That the trustees have no objection to the prayer of this petition being granted, and are ready and willing to make payment of the sums craved should your Lordships so direct. That the expenses incurred by the petitioner in the year 1899, subsequent to the above payment in April of that year, for the benefit of the said Marquess of Stafford are estimated at £407, 0s. 5d., and for the year 1900 at £643, 8s. 5d., which amounts include the cost of maintenance and education, of travelling, and other sums expended for the advantage of the said Marquess of Stafford.”

The petitioner craved the Court “to authorise and ordain the said trustees for the said Marquess of Stafford to make payment to the petitioner out of the free annual income of the trust funds so held by them of the said sums of £407, 0s. 5d. for the year 1899, and £643, 8s. 5d. for the year 1900, or such sums as your Lordships shall consider suitable for the present education and maintenance of the said Marquess; and furthermore to authorise and ordain the said trustees to make payment to the petitioner out of the said free annual income of such sum as your Lordships shall consider fitting to meet the increasing cost of educating and maintaining the said Marquess of Stafford during such future period as your Lordships may consider right and proper.”

No answers were lodged.

The Court appointed Mr R. A. Lee, advocate, curator ad litem to the Marquess, and remitted to the Hon. James W. Moncreiff, W.S., to inquire into the facts and circumstances set forth in the petition, and to report as to the propriety of granting the powers craved.

Mr Moncreiff lodged a report in which, after stating that he had verified the above statements set out in the petition, he reported as follows:—“If I am to make any suggestion therefore under this remit, and if your Lordships should approve of this report, I would respectfully suggest that your Lordships might authorise and ordain the said trustees (the concurring petitioners) out of the free annual income of the trust funds in their hands to make payment to the petitioner of (1) the two sums of £407, 0s. 5d. and £643, 8s. 5d. mentioned in the prayer of the petition; and (2) any sums that may be disbursed by the petitioner during the next three years, 1901, 1902, and 1903, in the education and maintenance of the said Marquess of Stafford, not exceeding, say, £600 for each of the years 1901 and 1902, and not exceeding, say, £700 for the year 1903; with liberty to the petitioner at the end of that period to apply to the Court for such further order as may be necessary.

“I may add that I am satisfied as to the propriety of granting the authority craved for payment of these sums, or such other sums as your Lordships may determine, out of the revenue of this large fund which came to the Marquess from his father disentailing these portions of his estate, and it is only reasonable that the Marquess should bear the greater part of the expenses of his own education and maintenance. Other applications, as your Lordships are aware, have been granted by the Court in similar circumstances, and I refer to some of these authorities— Scott, Petitioner, December 23, 1870, 8 S.L.R. 260; Stewart's Trustees, February 21, 1871, 8 S.L.R. 367: Edmiston, Petitioner, July 11, 1871, 9 Macph. 987; Seddon, March 18, 1893, 20 R. 675. At the same time it is right to point out there are adverse views in the opinions of the judges in the case of Fairgrieves v. Henderson, October 30, 1885, 13 R. 98.”

No objections were stated by the curator ad litem.