Scottish Court of Session Decisions

This was an action of multiplepoinding raised by Godfrey Sinclair, judicial factor appointed for the purpose of fulfilling the purposes specified in certain articles of agreement entered into between Henry Bertie Tollemache and other parties. The following statement of the facts of the case is taken from the opinion of Lord Curriehill:—“The fund in medio in this process of multiplepoinding consists of £1000, being part of a sum of £3000 which, in 1841, was entrusted by Lady Catherine Camilla Sinclair, spouse of Sir George Sinclair, to certain trustees for purposes which are set forth in a minute by these parties, executed in June of that year. The parties to that minute were Lady Catherine Camilla Sinclair; her husband, Sir George Sinclair; her daughter, Mrs Amelia M. L. Sinclair or Tollemache; and Henry Bertie Tollemache. The purposes of that trust are set forth in these articles of agreement. It was constituted in contemplation of a divorce being immediately obtained between Lady Sinclair's daughter and her husband. The issue of the marriage consisted of only one son, Wilbraham Archibald Tollemache, who, at the date of this agreement in 1841, must, I think, have been about three years of age. The trust which was the subject of that arrangement included not only that sum of £3000, but also two other sums amounting to £2000, contributed by Sir George Sinclair; but the present action is not concerned with that fund. Two trustees were appointed to administer the trust, but, they having declined, the trust was put under judicial management, and the judicial factor is now the raiser of this multiplepoinding. The purposes of the trust are numerous and somewhat complicated, but it is not necessary to trouble your Lordships with any statement as to more than one of them regarding the £1000 which alone constitutes the fund in medio. The first set of provisions applies to this sum of £3000, and provides that the revenue therefrom, to the extent at all events of £75 per annum, was to belong to the daughter, Mrs Amelia Sinclair; and ultimately, in certain events, she was to get the whole of the revenue, but not any part of the capital. That income was to be enjoyed by her during her life. As to the capital, one-third was disposed of by the fifth article of this agreement, and that is the article with which we are concerned in the present case. That article provides ‘that after the death of the said Mrs Amelia Madeline Louisa Sinclair the said monies above-mentioned (consisting of the said sum of £3000 from Lady Catherine Camilla Sinclair's funds, and of two sums of £1500 and £500 from the funds of the deceased Sir John Sinclair of Ulbster and Sir George Sinclair, payable after the death of the latter), shall be held by the said trustees for the purposes after-mentioned, all as stated in the several following articles, that is to say, the sum of £1000, part of the said sum of £3000 (part of Lady Catherine Camilla Sinclair's funds), shall be held for behoof of Wilbraham Archibald Tollemache, the only child of the said Henry Bertie Tollemache and of Mrs Amelie Madeline Louisa Sinclair or Tollemache, and be payable to him on his attaining the age of twenty-four years; the interest, under the restriction in article tenth, to be applied for his use until he shall attain that age.” Now, Wilbraham Tollemache attained the age of twenty-four years in July 1862, and died on 27th June 1863. His mother, Mrs Amelia Sinclair, survived till January 1864. Lady Catherine Sinclair predeceased both her daughter and her grandson, having died on 17th March 1863.”

Lady Sinclair's trustees claimed the whole fund in medio, pleading (1) that Wilbraham having predeceased his mother, after whose death only the said sum of £1000 was to be held by the trustees of the settlement for his behoof, he had at his death no vested interest in that sum; and (2) that the said sum had reverted to Lady Sinclair's estate on the death of Wilbraham and his mother.

Henry Bertie Tollemache, father of Wilbraham, claimed one-half of the fund in medio, pleading that, according to the sound construction of the articles of agreement above set forth, the sum of £1000, forming the fund in medio, was vested in the deceased Wilbraham Archibald Tollemache from and after his attaining the age of twenty-four, or at least from and after the death of the said Lady Catherine Camilla Sinclair.

The Lord Ordinary ( Jerviswoode) held that the £1000 was vested in Wilbraham Archibald Tollemache at the time of his death, and sustained the claim of Henry B. Tollemache.

Lady Sinclair's trustees reclaimed.