Scottish Court of Session Decisions

By antenuptial contract of marriage, dated 23rd March 1874, between William Ross, C.A., Edinburgh, and Ellen Percival Gibson, Miss Gibson's father William Walker Gibson disponed, assigned, and conveyed to the trustees therein mentioned, and for the uses and purposes hereinafter mentioned, certain lands, subjects, and others therein described, but that only as

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respects the dominium directum or right of superiority held by the said William Walker Gibson therein under the several feu-contracts narrated in the said antenuptial contract, together with the several feu-duties and casualties payable to the said William Walker Gibson under the same.

The first, second, and fifth purposes of the said trust were as follows:—“ In the first place, During the subsistence of the marriage hereby contracted they shall pay the free income of the trust estate (after deduction of any expenses of management applicable to or connected with the receipt or recovery of such income, and of any charges properly payable out of the income) to the said Ellen Percival Gibson, upon her own receipts, and excluding the jus mariti and right of administration of the said William Ross, and any claim to or control over the same on his part, or on the part of creditors or others in his right: In the second place, In the event of the dissolution of the marriage by the death of the said William Ross, and of there being a child or children of the marriage, or the issue of such surviving, the trustees shall pay the free income of the trust estate to the said Ellen Percival Gibson during her life: In the fifth place, In the event of their being children of the marriage, or the issue of such surviving at the period of the dissolution of the present marriage, the trustees shall hold the said whole trust estate (subject to the before-written directions for the application of the income thereof) for behoof of and as a further provision for the child or children of the present intended marriage, and the child or children of any subsequent marriage into which the said Ellen Percival Gibson may enter, if she shall be the survivor, and the same shall be payable to them at the same periods, and shall be subject to the whole of the powers, provisions, and declarations” which were therein specified and set forth in regard to the sum settled by the said William Ross upon the children of the then marriage, with certain exceptions and changes thereon.

The income of the trust estate consisted chiefly of feu-duties exigible from the said subjects conveyed by Mr Walker. There were also certain duplicands of feu-duty payable by the feuars of said subjects, which fell due every 20th, 22nd, or 25th year, according to the terms of the particular feu-contracts.

Questions having arisen as to whether these duplicands were to be treated as income or capital of the trust, the present special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the trustees under the marriage-contract, (2) Mrs Ellen Percival Gibson or Ross, now Nicoll, and (3) the children of the marriage between Mr and Mrs Ross, and also the children of Mrs Ross by a second marriage with Dr Augustus Nicoll.

Besides setting forth the provisions of the marriage-contract (quoted supra), it was stated in the case that Mrs Ross divorced her husband in 1890, and in the same year married the said Dr Augustus Nicoll. Four children of her first and two of her second marriage survived, and formed the third parties to the case.

The amount received from duplicands of feu-duty during the subsistence of the trust amounted to £585, 11s. 5d. This sum had been treated by the trustees as part of the capital of the trust.

The questions of law were as follows:—“(1) Do the duplicands or any of them, or any part of them, fall to be considered as income or revenue of the estate conveyed to the first parties under the said contract of marriage? (2) Do the duplicands or any of them, or any part of them, fall to be considered as capital of the said trust estate?”

Argued for the second party—The duplicands should be reckoned as income. The point was settled by Montgomerie-Fleming's Trustees v. Montgomerie-Fleming, February 28, 1901, 3 F. 591, 38 S.L.R. 417. That case was undistinguishable from the present.

Argued for the first and third parties—The duplicands should be treated as capital. They were to be treated as casualties, and were not part of the regular income— Magistrates of Dundee v. Duncan, November 20, 1883, 11 R. 145, 21 S.L.R. 107; Ewing v. Ewing, March 20, 1872, 10 Macph. 678; Gibson v. Caddall's Trustees, July 11, 1895, 22 R. 889, 32 S.L.R. 668. The case of Montgomerie-Fleming ( cit. supra) was distinguishable. It was decided purely on consideration of the probable intention of the testator in a will dealing with a property of which such duplicands formed an exceptionally large part.