Scottish Court of Session Decisions

By trust-disposition and settlement the late Dr Kidston conveyed his whole estate, heritable and moveable, to trustees for certain purposes. By the third purpose the trustees were directed to realise the truster's means and estate as soon as convenient, and pay from the proceeds certain annuities from capital to he set aside for that purpose. And it was declared that, as each annuity lapsed by the decease of the annuitant, the capital should become part of the residue of the trust-estate. By the fourth purpose the trustees were directed, after providing for the annuities, to pay over to the

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truster's daughter “the whole rest, residue, and remainder of my said means and estate, heritable and moveable, real and personal, and that absolutely, and take her discharge therefor; and likewise, as any portion of the capital invested to meet the foresaid annuities becomes, by reason of the death of any of the annuitants, available for that purpose, in like manner to pay over such part of said capital absolutely to my said daughter, and that from time to time as the annuities lapse in manner foresaid, and until the whole capital thus invested is paid over or accounted for to my said daughter.” By the fifth purpose the truster directed his trustees, if his daughter predeceased him, or survived him but died without having received payment of the whole residue of the estate, by reason of any annuitant being in the enjoyment of an annuity, and left a lawful child or children, that they should hold and retain the residue, or such part thereof as might become due and divisible subsequent to Miss Kidston's decease, for behoof of the children, and ultimately to divide the residue of the estate in a certain manner specified; and it was then “expressly provided and declared that said annual income or interest shall be payable by my trustees to my said daughter, exclusive always of the jus mariti and right of administration of any husband whom she may marry, and that the receipt of my said daughter, by herself alone, without the consent of such husband, shall be sufficient to my trustees therefor, the rights of such husband and that of his creditors being hereby expressly excluded and debarred.”

Dr Kidston was survived by his daughter, who is unmarried; and a considerable sum remained after payment of the legacies, and annuities directed. This Special Case was brought to have it settled whether a right to the fee of the residue had vested in Miss Kidston, and whether she was entitled to payment of the capital from time to time as realised; or whether the trustees were bound to hold the capital of the residuary estate during the life of Miss Kidston, and to pay the annual income or interest thereof to her, exclusive of the jus mariti and right of administration of any husband she might marry.

Kinnear for the Trustees.

Spens for Miss Kidston.

The Court held Miss Kidston was entitled to immediate payment of the residue in hand, and of the rest as it fell in.