Scottish Court of Session Decisions

This petition was presented on 24th June 1887 by Mrs Jessie Rankine or Milne, widow of the late Mr Nicol Milne, residing at Blainslie, Juniper Green, Edinburgh. It set forth that Mr Milne died on 25th April 1882, leaving three children, viz., Robert Milne, born 30th March 1875; James Rankine Milne, born 12th December 1876; and Jessie Catherine Milne, born 31st March 188—all of whom were therefore in pupillarity, and who upon their father's death became entitled to the share of residue of the estate of a Miss Hunter, an aunt of their father's, which was liferented by him. Mr Milne left a trust-disposition and settlement, dated 9th August 1876, by which he made certain provisions in favour of the petitioner and his children, and gave his trustees power to make advances from capital as well to the petitioner as to the children if they should deem it proper. After paying his debts there only remained a reversionary interest in the house at Juniper Green which the petitioner occupied and life-rented, and on which there was a debt of £400. Mr Milne did not appoint tutors or curators to his children. The eldest of them was in 1886 elected a foundationer of Daniel Stewart's Institution, Edinburgh, and as such was entitled to receive until he was fifteen years of age, a free education and an allowance on account of board, &c., of £20 a year, but with this addition, the only means available for educating and upbringing the children was their share of the residue of Miss Hunter's estate, the income from which since their father's death had been about £40 a year Under the Guardianship of Infants Act, 1886 (49 and 50 Vict. c. 27), the petitioner was the tutor and guardian of her said pupil children, and at her request the trustee under Miss Hunter's settlement conveyed and made over to her as tutor foresaid, as their share of the residue of Miss Hunter's estate, the following funds and estate, viz.—( First) Six shares of the Edinburgh Gas Light Company, which had since been sold by the petitioner for the sum of £420; ( second) £168 Consolidated Preference Stock No. 1 of the Caledonian Railway Company; ( third) £358, 15s. Consolidated Preference Stock No. 2 of the North British Railway Company; and ( fourth) £120 Consolidated Lien Stock of the North British Railway Company.

The petitioner stated that since her husband's death she had maintained the children from the interest of their share of Miss Hunter's estate so far as it would avail for this purpose, but she had been under the necessity of expending a considerable sum from capital belonging to herself, as she had been very desirous of affording her children as liberal an education as was within her power, and that as the children advanced, the cost of maintenance and education would be materially increased. She had expended, before obtaining the estate already mentioned, a sum of £253, 7s. 9d., or at the rate of £50 a year from the date of their father's death, in such maintenance and education over and above the income from the children's funds. The whole income which for the future would be available from the balance of the children's funds amounted, after repayment of the advances, to not more than from £32 to £35 annually, and this sum, the petitioner averred, was totally inadequate to meet the cost of their maintenance alone. The prayer of the petition was (1) for repayment of the advances out of the capital of the funds and estate held by her as tutor for her children, amounting to £250 or thereby; and (2) for payment of a sum, restricted to £75 in any one year, from time to time as might be necessary for their education out of the remaining capital, or any capital which she might acquire as tutor aforesaid.

The petition was duly intimated and served, and the Court ordered the Clerk of Court (Martin) to report on it.

Mr Martin on 18th July 1887 reported that after consideration he was of opinion that in the circumstances the petitioner had acted imprudently in expending £250 during the five years, and he did not think that she would be warranted in expending £75 a-year on her three children.

On 19th July the Court directed that before further procedure the petitioner should lodge a particular statement of the expenditure already made by her from her own funds, and applied for the use and benefit of the children. She accordingly lodged a minute in which she gave the details of her expenditure of £253, 7s. 9d., and stated that she had paid this sum out of the proceeds, amounting to £365, 5s., realised from the sale of an annuity of £20 which she possessed in her own right; that as that annuity and the income of £40 above mentioned formed the only source out of which the future wants of herself and her mother, who was an old lady and entirely dependent upon her, and the maintenance and education of the children, could be met, she had no alternative but to make the present application; the children had always been and still were of delicate constitution, and the expenditure upon them was absolutely necessary, and she had had in view that they would ultimately have to earn their own subsistence, and that the money now belonging to them could be best applied in giving them such an education and upbringing as would enable them efficiently to do so.

On the 11th of February 1888 the petition came up for consideration, and the petitioner lodged a minute restricting the prayer of the petition to repayment to her of £250 by five yearly instalments, commencing the payment of the first instalment as at that date, and further to payment of £50 annually until the eldest child attained majority.

The following cases were cited in support of the application— Hamilton, July 20, 1859, 21 D. 1379, and May 23, 1860, 22 D. 1095; and Fraser on Parent and Child, p. 233.

The Court granted the prayer of the petition as restricted in the minute lodged on 11th February 1888.