Scottish Court of Session Decisions

John Barry, merchant, Leith, died at Leith on the 21st of May 1884, leaving a trust-disposition and settlement dated 14th April of the same year. By this settlement the testator conveyed the whole estate of which he should die possessed to his trustees, for the ends, uses, and purposes therein mentioned. The settlement provided, inter alia, that the trustees should pay to the truster's widow, if she should survive him, a free annuity of £700 sterling during her life, and should permit her to occupy and possess the truster's dwelling-house, No. 63 Ferry Road, Leith, or any other dwelling-house which might be occupied by him at his death, with the household furnishing and plenishing of every description therein; and it was declared that these provisions should be accepted by her in full satisfaction to herof all legal claims:“Providing and declaring that my said wife shall out of the foresaid provision educate and maintain my children, born or to be born, in a way befitting their station in life, until they shall respectively attain the age of twenty-one years, or if daughters, be married.” The value of the trust-estate as at the date of the death of the truster amounted to the sum of £18,454, 5s. 4d. The annual value of the house liferented by Mrs Barry was £50.

Mr Barry was twice married, and had issue as follows, viz.—By the first marriage, Mary, born on 21st November 1858; Thomas, born on 17th September 1860; Kate, born on 26th August 1862. By his second marriage, John, born on 6th August 1867; Jessie, born on 11th July 1869; James, born on 4th February 1872. The whole of the children survived the testator, and the four last mentioned lived in family with Mrs Barry, and were maintained by her out of the annuity before mentioned. The mother of Miss Mary Barry, the eldest daughter, was a Roman Catholic, and Miss Mary Barry was educated as a Roman Catholic, and resolved to become a nun. With that view she on 15th November 1883, accompanied by her father and Mrs Barry, went to the convent at Rockferry, near Birkenhead, and entered the convent as a novitiate, and the truster then paid to the convent a sum of £40 as her board for one year. In November 1884 a further sum of £40 was sent to the convent by Mrs Barry, and the trustees placed the amount to the debit of Miss Barry's prospective share of her father's estate. Miss Mary Barry continued to reside at the convent at Rockferry, and claimed payment from her stepmother Mrs Barry of an annual sum for her separate maintenance. Mrs Barry disputed her liability to pay any sum for Miss Mary Barry's separate maintenance, but she offered to receive Miss Barry into the house liferented by her, and

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maintain her there along with the other members of the family.

This special case was presented to the Court, the parties of the first part being Mr Barry's trustees, Mrs Barry being the party of the second part, and Mary Barry being the party of the third part.

The parties were agreed that if Miss Barry should be held entitled to separate maintenance from Mrs Barry, the sum of £40 per annum should be held to be the amount to be paid by Mrs Barry.

The question of law was—“Is Mrs Barry bound to pay to Miss Barry a sum of money for her separate maintenance?”

Argued for the trustees and Mrs Barry—It was quite clear that the testator when he provided that his wife should educate and maintain his children, had also in view that they should all live in the same house as Mrs Barry, for he specially permitted her to occupy and possess his dwelling-house. It was unreasonable, then, and contrary to his obvious wishes, to expect Mrs Barry to support her stepdaughter outside that house. If the third party chose to disregard her stepmother's offer to maintain her in the Ferry Road home, and elected to reside in the nunnery, then there could be no obligation on her stepmother, and the clause of the will in regard to education and maintenance ceased to operate—Lewin on Trusts, p. 139.

Argued for the third party—Mrs Barry had no power to insist on her stepdaughter coming to live with her at Ferry Road. Her father alone, as in right of the patria potestas, could have asserted such a right. She had a perfect right to go into the nunnery, and that did not debar her from her claims to be maintained under the express provisions of her father's will. It was no answer that her stepmother had offered to receive her to live with her in the Ferry Road house— Ayton v. Colvill, 1705, M. 451; Moncrieff v. Fairholm, 1736, M. 454; Jackson v. Jackson, November 17, 1825, 4 S. 188.

At advising—