Scottish Court of Session Decisions

In June 1846 Robert Bell, Sheriff-Substitute of Zetland, and Miss Robina Hunter of Lunna entered into an antenuptial marriage-contract by which certain provisions were made for the spouses and for the children of the intended marriage, which took place immediately thereafter, and was dissolved by the death of Mrs Bell in 1863, leaving seven children, of whom three sons, R. H. Bell, B. D. C. Bell, G. J. H. Bell, and one daughter, Miss C. C. Bell, were alive at the date of this case. By the contract Mrs Bell on her part conveyed to trustees her whole heritable and moveable estate, and in particular the lands of Lunna, for the purposes of the trust conveyance, of which the 3d and 4th were—“ Third—For payment during the subsistence of the intended marriage of the free yearly proceeds of the residue of the trust-estate, after deduction of all public and parochial burdens and existing annuities, to the said Robert Bell for the use of the spouses. And in the event of the predecease of the said Robert Bell” (which event did not occur) “for payment thereafter of the said free yearly proceeds to the said Robina Hunter. Fourth—In. the event of the predecease of the said Robina Hunter” (which event happened) “the said trustees shall pay to the said Robert Bell an annuity equal in amount to one-half of the rental of the estate of Lunna, after deduction of all public and parochial burdens; the said annuity to commence at the first term of Whitsunday or Martinmas after the death of the said Robina Hunter, and to be payable in equal moieties at the said two terms. And it is hereby declared that the remaining half of the said rental, and the free proceeds of the residue of the trust-estate, or so much thereof as in the discretion of the said trustees may from time to time appear to be necessary, shall be applied in maintaining and educating the children of the marriage.”

The moveable estate failing under the trust-conveyance consisted, after certain deductions, of about £7000, which at the date of this case had been invested on permanent improvements on Lunna, and was thus represented by capital expenditure thereon. After the death of Mrs Bell Mr Bell was paid his annuity under the fourth purpose of the said marriage-contract. The manner in which the amount thereof was fixed by the trustees up to the time of this question being raised was thus stated in the case:—“From the gross rents receivable there have been deducted ( first) the public and parochial burdens for the year, and ( second) interest at 4 per cent. on the whole sum laid out on capital expenditure, under which term are included large outlays on churches and manses, and law expenses incidental thereto. The balance has then been divided into two equal portions, one portion being stated as the annuity payable to “Mr Bell.” To the other equal portion there has been added interest at 4 per cent. on the whole sum expended on capital expenditure, and from the total there have been then deducted ( first) repairs and current expenses (including expenses of management) and ( second) arrears of rent, the balance being stated as the sum available for the education and maintenance of the children.”

The present Special Case was presented by Robert

Page: 834↓

Hunter Bell, the eldest son of the marriage, and sole surviving trustee under the marriage-contract ( first party), and Mr Bell, his father ( second party), did not raise any question in regard to the apportionments up to Martinmas 1884, as the whole revenue from the trust-estate had been paid to the second party, and he had, on the other hand, expended on the education and maintenance of the children of the marriage, including the first party, sums considerably in excess of what would have been available therefor under the interpretation of the fourth purpose now contended for by the first party. As regarded the division of the rental of Lunna estate subsequent to Martinmas 1884, however, the first party maintained that the mode of apportionment hitherto adopted was erroneous and not warranted by the fourth purpose of the marriage-contract and that in ascertaining the amount of the second party's annuity there should be deducted from the gross rents of Lunna, as reduced by the deduction of 4 per cent. interest on capital expenditure, not only public and parochial burdens, but also arrears of rents not actually received, and the cost of repairs and current expenses. The second party maintained that in fixing the amount of his annuity under the fourth purpose there fell to be deducted from the gross rents receivable from the estate of Lunna, reduced as aforesaid, only public and parochial burdens.