Scottish Court of Session Decisions

By trust-disposition and settlement, dated 19th March 1869, Boyd Gilmour, coalmaster at Galston, who died on 26th March 1869, conveyed to trustees his whole heritable and moveable estate for the uses and purposes after-mentioned, viz.,—“First, that my trustees shall, from the produce of my means and estate, pay all my just and lawful debts, and funeral expenses, and the expenses of executing this trust: Secondly, that my trustees shall continue to carry on, for behoof of my estate, the trade or business in which I am at present engaged, in company with the said Allan Gilmour, until the expiry of the copartnership entered into, and at present subsisting, betwixt him and me, conform to contract of copartnery executed by the said Allan Gilmour and me upon the 21st day of April 1862; but declaring that in the event of differences arising betwixt my said trustees and any of my family in regard to the terms and provisions of this deed, whereby my said trustees may be prevented from continuing to carry on the said business in a satisfactory manner, then, and in that case, they may, if they think fit, and with the concurrence of the said Allan Gilmour, withdraw from the said business, and realise my share therein by disposing of the same to the said Allan Gilmour, in manner provided by article ninth of said contract of copartnery: Thirdly, that my trustees shall allow Elizabeth Howatson or Gilmour, my wife, in the event of her surviving me, the liferent use and enjoyment of my house in Titchfield Street, Galston, at present occupied by me; and also my trustees shall make payment to her of a free yearly annuity of £120 sterling, till such time as my youngest child shall attain the age of twenty-one years, after which event they shall pay her a free annuity of £60 sterling, to which the said annuity of £120 shall then be restricted and reduced, payable, the said annuity and restricted annuity, half-yearly, in advance, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas after my

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death for the half-year succeeding, and so forth half-yearly thereafter, with a fifth part more of each term's payment of liquidate penalty in case of failure, and the legal interest of each term's payment from the time the same becomes due, and till payment; as also, my trustees are hereby directed to pay to my wife such a sum as they shall think reasonable and proper for the maintenance of her and such of my children as she may be bound to support, as hereinafter provided, from the date of my death till the commencement of the said annuity, and also for providing her and them with mournings; but declaring, as it is hereby specially provided and declared, that in the event of the said Elizabeth Howatson or Gilmour entering into a second marriage, she shall cease to be entitled to the liferent of the said house above provided to her, and the said annuity and restricted annuity hereby provided to her shall also be further reduced and restricted to the sum of £20 sterling, payable, the said restricted annuity, at the terms, in the manner, and with interest and penalties, as provided with regard to the said annuity of £120, and restricted annuity of £60, and which annuity and restricted annuities hereby provided to the said Elizabeth Howatson or Gilmour shall be alimentary, and not affectable by her debts or deeds, or attachable by the diligence of her creditors; and declaring further that the said Elizabeth Howatson or Gilmour shall, by acceptation of the said annuity of £120 above provided to her, bind and oblige herself, as she is hereby bound and obliged, to maintain and upbring, in a manner suitable to their station, such of my children as have not attained majority, or been married, or are in a position to maintain and support themselves, till such time as the youngest child reaches the age of twenty-one years: Lastly, that upon the expiry of the said copartnership betwixt the said Allan Gilmour and me, whether by the natural expiration of the term of copartnership, or by my said trustees withdrawing therefrom, my said trustees shall realise and convert into cash my whole estates hereby conveyed, heritable and moveable, with the exception of my said house in Titchfield Street, Galston, if the said Elizabeth Howatson or Gilmour should then be alive and entitled to the liferent thereof as hereinbefore provided to her; and whatever residue or remainder there may be of my said estates after providing for the annuity or restricted annuity herein provided to the said Elizabeth Howatson or Gilmour, if she should then be alive, my said trustees shall pay and divide the same to and among my whole children, equally, share and share alike, payable, the respective shares of the said residue, to such of my children as may not then be of age, or married, upon their respectively attaining majority or being married, whichever of these events shall first occur, but as to such of them as shall then be of age or married, their share or shares alike shall be paid to them as soon as convenient for my said trustees; and upon the death of the said Elizabeth Howatson or Gilmour, should she have survived me and the expiry of the said contract of copartnery, my said trustees shall sell and dispose of my said house in Titchfield Street, Galston, and shall pay and divide the proceeds thereof, and the capital sum which may have been set apart to meet the annuity or restricted annuity provided to the said Elizabeth Howatson or Gilmour, equally to and among my whole children, in the same manner and at the respective periods as is provided with regard to the said residue or remainder; declaring that if any part of the said capital sum should be previously set free by the second marriage of the said Elizabeth Howatson or Gilmour, my said trustees shall have full power to pay and divide such sum so set free whenever they may find it convenient and suitable to do so, but always in the same manner and at the respective periods foresaid; and declaring further, that my said trustees, if they think it necessary and advisable, may from time to time advance and pay before the arrival of the terms of payment foresaid such sums as they may think fit to any or for behoof of any of my children who may require the same—if a son, for entering upon business, or if a daughter, for fitting her out on marriage, or otherwise for behoof of my children—and which sum or sums shall be accounted as in part-payment of the share to which such child or children may be prospectively entitled to.” The truster was survived by his second wife and by nine children. At the date of his death three children were living in family with him. These children were in pupillarity at the date of the action. The value of the estate at the date of the action was estimated at about £8000. From the date of the truster's death down to 20th February 1871 Mrs Gilmour received the annuity of £120, and her two daughters and son, parties to this case, and also the two unmarried daughters of the truster by his first marriage, continued to reside with her and be maintained by her. Her annuity, however, proved unequal to the maintenance of herself and these children, and the trustees paid certain debts incurred by her during this period on account of the children. On 20th February 1871 Mrs Gilmour entered into a second marriage with Hugh Wilson, flesher, Galston, and removed with her pupil children to his house. The two youngest daughters of the truster by his first marriage have taken a house for themselves, and are each receiving an allowance out of the trust-estate for their maintenance to account of their shares of the trust-estate. Since Mrs Gilmour's second marriage, she has intimated a claim on behalf of the pupil children of the truster by his second marriage that they shall be maintained out of the trust-estate till such time as they are of age, so as in this respect to place them on an equality with the children of the first marriage. The trustees have intimated that they are willing to advance out of the trust-funds a yearly sum of £50 for the maintenance of the three children, to account of their shares of the trust-estate, but that they cannot pay any sum for the children's maintenance out of the general trust-estate. The parties of the second part maintain that the allowance ought to be paid out of the general estate of the truster; and further, contend that the annual sum of £50 proposed by the trustees is inadequate for the maintenance, clothing, and education of the three pupils.

In these circumstances this Special Case was presented, and the opinion of the Court requested on the following questions:—

“1. Are the pupil children, parties to this case, entitled to a yearly allowance from the general estate of the truster for their education and maintenance till such time as they are able to maintain themselves or attain majority, or until the period for distributing the trust-estate, whichever of these events shall first happen?

2. Have the parties of the first part power to

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advance a yearly sum out of the general trust-estate for the education and maintenance of the said children?

3. What is the amount of the yearly allowance to which the said children are presently entitled for their education and maintenance? or, What yearly sum have the parties of the first part power to advance for that purpose?”

Fraser and Robertson for parties of the first part (Gilmour's trustees).

Watson for Gilmour or Wilson and husband.

Reid for the tutor ad litem to pupil children.

At advising—