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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allan v. Kerr and Another [1869] ScotLR 7_9 (21 October 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0009.html
Cite as: [1869] SLR 7_9, [1869] ScotLR 7_9
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SCOTTISH_SLR_Court_of_Session
Page: 9↓
Court of Session Inner House First Division.
v.
Facts:
By postnuptial deed a lady and her husband assigned to trustees her right to a bequest in her favour by her grandfather, directing the trustees to pay the interest of the money to the spouses, and the survivor of them, and the principal to the children of the marriage. Thereafter the spouses, with the concurrence of the only child of the marriage, executed a revocation, which the trustees declined to recognise, and, at the bar, offered caution for repayment in the event of other children being born. Caution refused, and action dismissed.
By last will and testament, dated 5th February 1818, George Simmers, residing in Aberdeen, bequeathed the residue of his whole estate and effects to his daughter, Mary Simmers or Adamson, in liferent, and her children in fee. Her only child, Mary Adamson, married Hugh Allan, cabinetmaker in Aberdeen; and on the 1st February 1853, Mr and Mrs Allan assigned to trustees Mrs Allan's whole interest in her grandfather's bequest. The trustees were directed to pay the interest of the money to Mrs Allan during her lifetime, and thereafter to her husband, if he survived her, with power also to advance not more than half the principal sum to Mrs Allan, or Mr Allan if he survived her. But it was expressly declared that this was to be done for the sake of the better maintenance of the spouses and the children of the marriage, and that Mr Allan's interest therein was not to be assignable nor affectable by his debts and deeds. The fee was to belong to the survivor of the spouses, if there were no children of the marriage; but if there was any child, or the issue of any child, then the fee was to go to such child or children on the death of the survivor of the spouses, majority being the time of payment. On 8th July 1868, Mr and Mrs Allan, with the consent and concurrence of their daughter Mary Simmers Allan, executed a revocation of this trust-deed and assignation; but as the trustees refused to denude themselves of the trust, Mr and Mrs Allan, with their daughter's concurrence, brought au action of declarator of the validity of the revocation.
They contended that, as Mrs Allan was forty-nine years, and therefore unlikely to have more children, and as the daughter was of full age, and gave her consent, that the only persons having a jus crediti in the trust-estate were themselves, and that the deed was therefore revocable by them.
The trustees replied that it was not certain that the purposes of the trust had been fulfilled. The pursuers might have more children, or, even if they had no more, if their daughter left children, and died before her parents, the succession would open to the children, and not to their mother, who had given the consent to this revocation. The trustees further contended, that the trust-deed and assignation was a delivered deed, and was not suâ naturâ revocable.
The Lord Ordinary ( Mure) assoilzied the defenders, holding that though there was a jus crediti in the fee of the trust-estate in the child of the pursuers' marriage, and her issue, yet that no right to any share of it vested during the lifetime of
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her parents, and therefore that the assignation could not be revoked by the pursuers, even with their daughter's consent. The pursuers reclaimed, and offered caution for return of the funds in case of the birth of any other child of the marriage.
Fraser and M'LAREN, for the reclaimers, cited the following authorities:— Scheniman v. Wilson, 6 S. 1019; Majendie v. Carruthers, 16th Dec. 1819, F. C. and 6 Pat. App. 597; Beattie's Trs. v. Cooper's Trs., 24 D. 519; Craigie v. Gordon, 15 S. 1157; Thornhill v. M'Pherson, 3 D. 394; Smitton v. Tod, 2 D. 225; Pretty v. Newbigging.
Lord Advocate ( Young, who was not called on) and H. J. Moncreiff, for respondents.
At advising—
Lord President—Here a disposition was made to trustees by the husband and wife. The trustees entered and administered the trust. They made various payments to the husband and wife from the income of the trust-estate, and various advances from the principal sum.
It is now proposed to revoke the disposition, with the consent of the only child of the marriage. The intention of that disposition was that there should be no division of the fee till the death of the longest liver, and the fee was then to go to the child or children equally, the issue of any child who had predeceased the survivor of the spouses taking the share of its or their parent.
Now, it is said that as Mrs Allan is forty-nine years of age she may not be expected to have more children. That may be unlikely, but it is not impossible, and if she have any more children they have an interest in the trust-estate.
But the pursuers propose to avoid this difficulty by their offer of caution, and they say that the children of the daughter of the marriage have no interest, and cannot be taken into consideration whilst she is alive. Whether this proposition is correct or not, however, cannot be discussed till the question of caution has been settled.
Now, an offer of caution is an appeal to the discretion of the Court. No party is entitled to it as a matter of course, and it can only be acceded to on the conditions prescribed by the Court. It is therefore a matter for our consideration whether we should agree to it. Now, the object of this trust was to prevent the risk that was run in case of Mr Allan's bankruptcy. But the very reason of this revocation is because he is in difficulties. Acceding, then, to the pursuer's offer of caution would make the Court aid them in defeating the very object of the trust-disposition. When the Court accepted caution in the cases of Scheniman and Pretty, referred to, it was in order to give effect to the testator's views, whereas division of the money here would defeat them.
A question of great importance also is, What are the rights of the possible grandchildren? But there are none, and there may never be any; yet we are asked to decide the question. Now we never decide a question before it arises, and that would be sufficient to prevent our stating our views upon this proposition of the pursuers, even if we got over the difficulty about caution, and, as I have already said, we cannot listen to this offer of caution. I am therefore of opinion that the proper course is to dismiss this action.
The question just is, whether the right not having vested in the daughter so as to be transferable to other parties, that yet she should be entitled to set aside the deed by a revocation. In Routledge's case the marriage had been dissolved, and it was the only child of the marriage that made the revocation.
Recall the interlocutor of the Lord Ordinary, dismiss the action, and sustain the defences, with expenses.
Agents for Reclaimers— Henry & Shiress, S.S.C.
Agents for Respondents— Morton, Whitehead, & Greig, W.S.