Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 8_367, [1871] SLR 8_367

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SCOTTISH_SLR_Court_of_Session

Page: 367↓

Court of Session Inner House First Division.

Tuesday, February 21. 1871.

8 SLR 367

Special Case—Stewart's Trustees and John Stewart.

Subject_1Trust
Subject_2Pupil
Subject_3Parent and Child
Subject_4Accumulation — Aliment.
Facts:

Trustees were directed to hold property (to the value of about £160 per annum) for behoof of a pupil, to be paid to him when he should reach majority. Held that the father of the pupil was not entitled, as administrator in law for his son, to claim payment from the trustees of the whole annual income, but that he was entitled to such an allowance out of the same as should relieve him of the maintenance and education of the pupil, the amount of the allowance being a question, in the first instance, for the discretion of the trustees.

Headnote:

The parties to this Special Case were—(1) The trustees of the late Mrs Isabella Wallace or Stewart, formerly residing in Perth; (2) John Stewart, wine and spirit merchant in Glasgow, as administrator in law for David Stewart, only child of the marriage between the said John Stewart and the now deceased Mrs Elizabeth Stewart, daughter of the late Mrs Isabella Stewart.

Mrs Isabella Stewart died in 1854, leaving a trust-disposition and deed of directions by which she directed her trustees to hold her estate for payment of the free annual produce to her daughter, Elizabeth Stewart, during her life, and for the use and behoof of the children of her daughter, until the whole of the said children should have attained majority, or their mother have died, whichever of these events should last happen, then to be divided equally among the children, share and share alike.

Elizabeth Stewart was married in 1853 to John Stewart, and died in 1869, survived by her husband and by an only son, still in pupillarity.

Mr Stewart, as administrator in law for his son, claimed that the whole free annual produce of the trust-estate (about £160) should be paid over to him for behoof of his son. The trustees, on the other hand, claimed to retain and accumulate the free annual produce. It was stated that Mr Stewart was in fair circumstances, and able to aliment and educate his son.

The question submitted to the Court was as follows:—

“Whether the free annual produce of the truster's estate, which has accrued since the death of the foresaid liferentrix, her daughter, and which may yet accrue, belongs to the pupil the said David Stewart; and (if so) whether the trustees are bound to pay over the same as it has been or may be received by them, or any, and what part thereof, to the said John Stewart, as administrator in law of the said David Stewart, for behoof of the said David Stewart, during his pupillarity, and thereafter during his minority to the said David Stewart himself, with consent of his said administrator in law or curator for the time being?

Maclean, for John Stewart, referred to the following cases:— Campbell v. Reid, 12th June 1840, 2 D. 1084; Ogilvy v. Cumming, 27th June 1852, 14 D. 363.

Mackintosh for Stewart's trustees.

At advising—

Judgment:

The Lord President—There can be no doubt as to the way in which we should dispose of this case. The estate has vested in the child, and the income also belongs to him. There is no direction to accumulate in whole or in part. The child's father is in fair circumstances, but there can be no doubt that a child who possesses an income of his

Page: 368↓

own is not entitled to have it accumulated, while his maintenance and education is borne as a burden by his father. The income falls, in the first instance, to be devoted to this purpose. The surplus, if any, is to be accumulated, there being no other fair way of dealing with it for the child's benefit. The contention of the father is, that he is entitled to supersede the trustees as regards the income of the trust-estate. I am clear he is not, but I am equally clear that he is entitled to such an allowance out of that income as will relieve him of the maintenance and education of his son. With regard to the amount of the allowance, that question, in the first instance, is for the discretion of the trustees.

The other Judges concurred.

Declaratory finding in terms of the foregoing opinion.

Solicitors: Agent for Stewart's Trustees— Alex. J. Napier, W.S.

Agents for John Stewart— Duncan, Dewar, & Black, W.S.

1871