Scottish Court of Session Decisions

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Cite as: [1887] SLR 25_119, [1887] ScotLR 25_119

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SCOTTISH_SLR_Court_of_Session

Page: 119↓

Court of Session Inner House First Division.

Wednesday, December 7. 1887.

25 SLR 119

Muir Petitioner.

Subject_1Trust
Subject_2Nobile Officium
Subject_3Allowance to Parent for Education of Children.
Facts:

A trust-estate was held by testamentary trustees for the purpose of paying the half of the income to the truster's son and accumulating the other half for his children. The income of the estate was £4623, and the son had eight children. In a petition presented by him, the Court authorised the trustees to make payment to the petitioner, out of the income of the trust-estate other than that portion of the income which was payable to him, of an amount equal to one-half of the sum expended by him in each year on the education of his children, not exceeding the sum of £500 in any one year.

Headnote:

William Campbell Muir of Inistrynich presented this petition, which prayed the Court to authorise
Page: 120↓
and ordain the trustees acting under his father's trust-disposition and settlement to make payment to the petitioner, for the suitable maintenance and education of his children, out of the free annual income of the trust-estate under their charge, other than that portion of the income which was payable to the petitioner, of the sum of £650 yearly.

The purposes for which the respondents held the trust-estate had been determined by an agreement entered into between them and the petitioner as the settlement of a litigation. Under that agreement the trustees were to pay the petitioner yearly one-half of the nett revenue derivable from the trust-funds, and the remainder of the revenue was to be accumulated by the trustees for behoof of the petitioner's children until they reached the age of twenty- five, or, in the case of daughters, until they attained that age or were married.

At the date of the petition the petitioner had eight children, seven of whom were being educated. He averred that the income derived from the trust-estate had seriously diminished; that his family had been increasing and growing up, and that the expenses connected with their education had become a serious item in his expenditure; that accordingly he found it necessary, in order that he might maintain and educate his children in a manner suitable to their future prospects, to have at his disposal a larger income than he could command. He further averred that the nett income of the trust-estate for the year ending 30th May was £4623, 12s. 4d., and that the trustees were thus accumulating income on behalf of the children to the extent of more than £2300 a-year.

The trustees lodged answers, in which they “expressed themselves willing, if authorised by the Court, to meet the petitioner's wishes to the extent of defraying one-half of the expense of the education of the children.”

At advising—

Judgment:

Lord President—In all such cases as the present the first consideration always is, what arrangement is most beneficial to the children, and what I look at here is the entire income of the estate and the proportion thereof enjoyed by the petitioner. The total amount of the income of the trust-estate is £4623. Of that the petitioner is getting a sum of £2323 per annum, and the trustees are accumulating for the children the balance of £2300. The first question in this case is, whether it will be for the advantage of the children that any part of the accumulated income should be applied for the education of the children? In determining that question, of course we take into consideration the fact that the petitioner is in receipt of an income from the estate, and I am not prepared to advise that he should be relieved entirely from the duty of educating his children. On the other hand, although he has a good income—it might be called a handsome income—from the estate, still, if he desires for his children a superior education, it is a fair subject for consideration whether it is just to lay upon him the whole burden, while the remaining part of the income from the estate is being accumulated for the children. It appears to me that the trustees made a very fair proposal when they suggested that they should pay a half of the required amount, and that the petitioner should pay the other half. The principle of our judgment is, that the petitioner and the trustees should each contribute one-half of any sum which may be necessary to give the children a first-rate education.

Lord Mure and Lord Adam concurred.

Lord Shand was absent from illness.

The Court pronounced the following interlocutor:—

“The Lords authorise and ordain the respondents, the trustees of the late William Muir of Inistrynich, to make payment to the petitioner, at the 31st of January and the 31st July of each year, of an amount equal to one-half of the sum expended by the petitioner in each year on the education of his children, whether mentioned in the petition or not, including board when from home and travelling expenses, as the same shall be vouched to the satisfaction of the said trustees, said amount payable by the said trustees not to exceed the sum of £500 in any one year, beginning the first half-year's payment of said amount at 31st January 1888 for the half-year preceding that date, and the next half-year's payment at 31st July 1888, and so forth half-yearly thereafter during the education of the said children, and until they become respectively entitled to their shares of the said trust-estate: Authorise and direct the said trustees to make said payment, and also payment of the expenses incurred by the petitioner and respondents in this application, as the same may be taxed by the Auditor of Court as between agent and client, out of the share of the revenue of the said trust-estate pertaining to the children of the petitioner, and to charge the same as a general payment against the said income account, declaring that the present arrangement shall take effect till the further orders of the Court; and decern.”

Counsel:

Counsel for the Petitioner— Sol.-Gen. Robertson— Omond. Agents— Murray, Beith, & Murray, W.S.

Counsel for the Respondents— Jameson. Agents— Boyd, Jameson, & Kelly, W.S.
1887