Scottish Court of Session Decisions

This was a Special Case for the opinion of the Court in the following circumstances. James Paris, S.S.C., died on 27th July 1869, leaving a trust-disposition and settlement containing the following clauses. By this deed he disponed all his property, real and personal, to trustees (1) for the payment of his debts; (2) for payment of annuities to his sisters and aunts; (3) for payment of certain legacies. The deed proceeded—“(5) My trustees shall, after making provision for the foresaid annuities out of the free income of my estate, and there happen to be any free income remaining, they shall divide the same into three shares, two of which shares they shall pay to the said Alexander Paris, and one share they shall lay aside and invest for behoof of my said niece Jane Gow, and allow her the interest only on such sums as may be invested till she attain the age of twenty-five years complete, when (should she live till that time) my trustees will hand over to her, as her own absolute property, the accumulated shares of income from my estate; … and farther declaring, that in the event of the death of either of the said Jane Gow or Alexander Paris, without leaving lawful issue, before the period when the said Jane Gow would have reached the age of twenty-five years, the share of the predeceaser, with all accumulations, shall accresce and belong to the survivor; … and (6) At the period when the said Jane Gow (if alive) shall have attained the age of twenty-five years complete, should my said sister Christina have predeceased that period, and if not, then at her death, so soon as it happens thereafter, I authorise and appoint my trustees to divide my whole estate, heritable and moveable, into three equal parts or shares, and pay or convey over to my said brother Alexander Paris two of these shares, and to my said neice Jane Gow one of these shares, declaring that the shares of either dying without leaving lawful issue shall accresce and belong to the survivor; but in the event of either dying leaving lawful issue, such issue shall be entitled equally among them to their parent's share; and failing the said Jane Gow and Alexander Paris by death before the final division of my estate, without leaving lawful issue, I direct my trustees to divide the same equally, share and share alike, among the whole children then alive of the said Mrs Mary Paris or Wotherspoon and John Paris; and I hereby further declare that the sums destined to be paid from my estate to the said Alexander Paris and Jane Gow shall he strictly alimentary, and not liable to their debts or deeds, or subject to the legal diligence of their creditors, and the same shall not be assignable by them, either onerously or gratuitously.”

The testator's sister Christina died on 28th April 1870, and his brother Alexander on 16th June 1870, without issue and unmarried. Alexander had, on 6th January 1870, granted a trust-deed for behoof of his creditors in favour of William Myrtle, and when he died, in July, he was owing £440 to the Commercial Bank for overdrafts on his account, and for these overdrafts the testator had been cautioner to the hank, and consequently his trustees were liable.

The parties to this Special Case were—(1) The trustees of the testator; (2) the said Jane Gow and her tutors; (3) the said Mrs Wotherspoon or Forrest and her children and others; and (4) William Myrtle, as trustee for the creditors of Alexander Paris.

The questions had reference (1) to the two-thirds of the free annual income of the estate which were destined to Alexander, and which, in the event of his death without issue, were to accresce and belong to Jane Gow as survivor.

The following were the questions of law;— “1, Are the trustees of the said James Paris hound to retain and invest the said two-thirds for behoof of the said Jane Gow till she attain the said age of twenty-five years complete, and during that time to pay to her, or for her behoof, no more than the interest of the sums to be so invested ? Or, 2, Do the said two-thirds, as they from time to time accrue, fall to be paid to the said Jane Gow, or her guardians, as her own absolute property?”

The other questions had reference to the sum of £123, being two-thirds of the balance of the free income of the estate from the testator's death till that of Alexander Paris. This sum was claimed—(1) By the trustees in part payment of the above sum of £440 which they had paid to the bank for behoof of Alexander Paris; (2) by the trustee of Alexander's creditors; and (3) by Jane Gow.

The questions were as follows:—“1, Are the trustees of the said James Paris entitled to retain the sum, or any and what part thereof, until they receive payment of the foresaid sum of £440? 2, Is the said William Myrtle, as trustee foresaid, entitled to payment of the foresaid balance, or any and what part thereof? 3, Is the said Jane Gow, by virtue of the provisions in the foresaid trust-disposition and settlement, entitled to the foresaid balance, or any and what part thereof? 4, Is the said Jane Gow, as next of kin of the said Alexander Paris, entitled to confirm for her own behoof to the said balance, or to any and what part thereof?”

Black for the parties of the first and third parts.

Fraser for the parties of the second part.

Strachan for the parties of the fourth part.

The Court unanimously were of opinion that the testator intended that Jane Gow should take the share of the free annual income which might come to her if she survived Alexander Paris, under the same conditions as had been made regarding her own share, and therefore answered the first branch of the questions to the effect that the trustees must retain and invest the said two-thirds of the free annual income for behoof of Jane Gow until she attained the age of twenty-five years, paying her the interest.

With regard to the second branch of questions, they were of opinion that the trustee for Alexander's creditors had no claim to the £123 odd, as it was not attachable for his debts, nor indeed assigned by his trust-deed. It must be imputed pro tanto to extinguish the debt of £440 due by Alexander to the testator; and accordingly they answered question No. 1 in the affirmative, and the others in the negative.