Scottish Court of Session Decisions

This was a petition at the instance of the widow of the late Mr Douglas of Orbiston, who died in 1866, leaving issue of his marriage with the petitioner a son and a daughter, both in pupillarity, the son being eight and the daughter eleven years of age at the date of the petition. The petition proceeded on the following narrative:—“The said Robert Douglas was, at the time of his death, proprietor in fee-simple of the lands and estate of Orbiston, including the lands of Douglas Park, in the county of Lanark; and he was also fee-simple proprietor of the undivided moiety of an estate in Ceylon, called Sylvakanda. The Orbiston estate is of great value, especially on account of its mineral resources. The gross land rental of the estate, including the rent of the mansion-house furnished; is now, and has been since Mr Douglas' death, about £1390 a-year. The minerals, which consist of coal and ironstone, at present yield £1000 a-year of fixed rent. The mineral rental for the year to Whitsunday 1867 was £400; and for the next year, that to Whitsunday 1868, £700. Since Whitsunday 1868, down to the present time, it has amounted to £1000; and this rental will in all probability be largely increased, as the mineral resources of the estate, which are undoubtedly very large, have as yet been only partially developed.” The gross rental of the estate, including minerals, is thus about £2300 a-year, and “the public burdens and interest on debt affecting the estate amount together to £610 a-year, so that the net rental of the Orbiston estate, inclusive of minerals, and of the rent of the furniture in the mansion-house, is about £1780 per annum.” By antenuptial contract of marriage with the petitioner, Mr Douglas, who had not then succeeded to the estate of Orbiston, made the following provisions in favour of the petitioner and their children, viz.:—(1) He bound himself to provide and secure £4000 to her in liferent, and their children in fee. (2) He conveyed to her absolutely his household furniture and others, subject to a right of redemption by his heir on payment to her of £400. (3) He bound himself to pay to her £50 for mournings, and interim aliment corresponding to the rate of interest on said £4000. (4) The fee of said £4000 is declared to be payable to the children at the first term after the deaths of both spouses, and the majority or marriage of daughters and the majority of sons, and to bear interest from the term of payment. (5) Mr Douglas bound himself, and his heirs, executors, and successors whomsoever, “to aliment, entertain, and educate his said children suitably to their station, until the term of payment of their said provisions, or until they shall be otherwise provided for.” (6) The legal provisions of both wife and children are barred.

By his trust-disposition and settlement, and codicils, the said Mr Douglas conveyed his estates in general terms to trustees, who are also appointed his executors. Of these, the petitioner, the Hon. Lord Mackenzie, one of the Senators of the College of Justice, and Alexander Wood, doctor of medicine in Edinburgh, now survive and act. The trust-purposes are the following, viz.:—(1) To pay debts, deathbed charges, and the trust expenses. (2) To pay to the petitioner £250 a-year, in addition to her liferent of £4000 under her contract of marriage. (3) To deliver to her his household furniture and others, for her absolute use. (4) To make payment of certain legacies, amounting in all to about £1000. (5) To hold the residue for his children, in the proportion of two-thirds to his son, and one-third to his daughter.

The trustees are directed, “if necessary, to realize and convert into money my whole estates, heritable and moveable, hereby conveyed, and to divide and allocate the said residue into the shares above mentioned, if there shall be more than one child,

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and to pay, assign, and make over the same, with the accumulated interest or annual produce thereof, to the child or children entitled thereto—to his son at majority, and to his daughter at majority or marriage. The residue is declared not to vest in the children until the time of payment.

The trustees are declared to “have power to make such allowance as they may think proper to the said children, for their proper maintenance and education, out of the free interest” of their presumptive shares; and also to make advances to sons, out of their presumptive shares, for their benefit or advancement in the world. The trustees are also appointed tutors and curators to the truster's children. The petitioner receives from Mr Douglas' trustees annual payments on her own account to the amount of £490, which, being deducted from the net rental of Orbiston as before stated, leaves a free surplus revenue of £1290. The trustees have paid fixed annual allowances to each of the children of £100 before 1870, and £150 since that time, besides extra allowances for medical attendance.

“The allowances which the trustees have hitherto made to the petitioner for her children are quite insufficient, having regard to their station and pecuniary prospects, and the state of their health, which has always been and is exceptionally delicate. They require constant medical attendance, change of air, and carriage exercise, the care of separate servants, and a sumptuous diet, to keep them in life. The petitioner cannot afford, upon the allowances which she has hitherto received for her children, to provide all these requirements for them. She is even unable, upon the present allowances, to employ a governess for their education, and she has been obliged hitherto to educate them herself.”

The petitioner applied to the trustees for increased allowances, and they selected Dr Sieveking to examine the children and report. In his report Dr Sieveking inter alia states—“Without laying any stress upon information supplied to me by Mrs Douglas, I am satisfied by my examination of the children that the greatest judgment will be necessary to fortify and secure their health, and to bring them up to manhood; that they require constant medical supervision, and that they must be especially guarded against the influences of cold and inclement climates. I regard them both as delicate, and devoid of that constitutional vigour which will enable them to resist the inroads of disease, or to pass through its phases, if attacked, with the average prospect of recovery I cannot but think that their constitutions have been undermined by the ordeals through which they have passed, and that neither of them can, to use the phrase of life insurance, be considered ‘good lives.’ The age of puberty will, in the case of Mr and Miss Douglas, be attended with special risk;… and in the meantime everything that domestic care and hygiene, under wise medical control, can secure for their physical and moral development should be carefully attended to. As the boy is nearly of an age to be sent to school, I may add that I do not think him strong enough to be subjected to the ordinary course of scholastic training. I am of opinion that both he and his sister should have such climatic changes as their physician may from time to time enjoin.” Upon considering this report and the application of the petitioner, the trustees expressed their willingness to consider from time to time any application for extra allowance, in order to give the children the benefit of such climatic changes as were indicated by Dr Sieveking, but expressed their opinion that the £300 paid to Mrs Douglas annually on account of her two children was an ample allowance.

“On account of this refusal on the part of the majority of Mr Douglas's trustees, the petitioner is placed in a situation of great pecuniary embarrassment. She has been obliged to incur debt to a considerable amount, in order to find the necessary means of maintaining her children, and even to apply to her own relatives for gratuitous assistance; and this has been communicated to the trustees.”

The petitioner accordingly prayed the Court to fix the allowance to be made to her for the maintenance and education of her children at £750 per annum.

To this petition the trustees lodged answers in the following terms:—Allowing that the allegations of fact in the petition were generally correct, they stated “that the land rental of the estate was £1310 a-year, £80 of the £1390 mentioned in the petition being paid to the petitioner in respect of the use of the furniture; and that the total surplus revenue of the estate, necessary payments being deducted only, amounted to £900 a-year, and further, that it was only during the last few years that the income of the estate had exceeded the expenditure. That the trustees considered the allowance of £150 to each child amply sufficient, and as much as they were warranted to give, looking to the position of the property, and the terms of Mr Douglas's settlements, but that they were still ready, as they had always been, to make every necessary allowance, and to reconsider the question of fixed allowances as the children grew older, or as other circumstances might render expedient. That if the petitioner had fallen into pecuniary embarrassments, incurred debt, and applied to her relatives for gratuitous assistance, this had not arisen from any inadequacy of the allowances made by the trustees to meet the expenditure upon the children. That, in the respondents' judgment, £750 per annum would be an excessive and unnecessary allowance for the children, even if the trust-estate could safely afford it, and that so large an allowance could not and would not be applied advantageously or beneficially for them. That the respondents do not consider the trust-estate can be relied upon to afford so large a fixed allowance, as, but for the mineral rents, there would be no surplus income, and circumstances might occur which would lead to a cessation in whole or in part of the receipt of these rents. That, in the whole circumstances, the respondents felt it to be their duty to submit that the prayer of the petition ought to be refused.”

Watson and M'Donald for the petitioner.

The Solicitor-General and Balfour for the respondents.

At advising—