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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ross's Trustees and Others Petitioners [1894] ScotLR 31_812 (14 July 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0812.html
Cite as: [1894] SLR 31_812, [1894] ScotLR 31_812
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SCOTTISH_SLR_Court_of_Session
Page: 812↓
Court of Session Inner House First Division.
Facts:
A testator after providing that his widow should have a liferent of the residue of his estate, directed his trustees to hold the residue for behoof of his children, and after the death of the longest liver of himself and his wife, to
Page: 813↓
divide the same equally among his children, but declaring that such division should not take place until the youngest of his children had attained majority, and that the children's provisions should not become vested interests until the said term of division. In the event of any of the children dying before the period of division leaving lawful issue, such issue were to take their parent's share, and failing such issue the share of the predeceasing child was to accresce to the survivors. The testator was survived by a widow and three children. At the date of the widow's death none of the children had attained majority. Thereafter the trustees petitioned the Court for authority to apply the income of the estate, which amounted to about £78 per annum, for behoof of the children, who had no other means of maintenance. The Court granted the petition, holding that the income being undisposed of fell to be treated as part of the capital of the estate, and that the testator's children as a family having the sole interest in the trust fund, the Court had power, under section 7 of the Trusts (Scotland) Act 1867, to grant the authority craved.
David Ross died on 5th March 1893 survived by a widow, a son born in 1875, and two daughters born respectively in 1877 and 1885.
Mr Ross left a trust-disposition and settlement whereby he conveyed his whole means and estate to trustees. After providing for payment of debts and expenses, and that the annual produce of the residue of his estate should be paid to his widow under the declaration that she should be bound to maintain and educate the children of the marriage until they should be able to maintain themselves, the testator further provided as follows:—“That my trustees shall hold the residue of my whole means and estate, heritable and moveable, for behoof of the children that may be born of the marriage between me and my said wife, and shall, after the death of the longest liver of me and my said spouse, or in the event of her surviving me, after her entering into a second marriage, divide and apportion my whole estate and effects, heritable and moveable, equally among my whole children to be born of the marriage between me and my said wife, but declaring that such apportionment and division shall only then take place provided the youngest of our children alive at the time shall have attained the age of twenty-one years, and if not, shall be postponed until the youngest of the survivors of them shall attain that age, with power nevertheless to my said trustees, with the consent and approbation of my said spouse in the event of her surviving me—her consent, nevertheless, not being necessary after she has entered into a second marriage—to advance to my son or sons such part of their provisions as to my trustees shall seem proper for apprenticing them or otherwise fitting them out in life, which advances shall form preferable claims against and be deducted from his or their proportion of the residue of my said estate payable to him or them; declaring that the provisions to my said children shall not become vested interests in them until the term of division of my said estate above mentioned; but declaring, nevertheless, that in the event of any of my said children dying before the said term of division, and leaving lawful issue, such issue shall be entitled to their parent's share, and the same shall be divided equally among his or her issue alive at the period of payment or conveyance, and failing such issue, the share of such child deceasing shall fall and accresce to the survivors, and be payable to them on the same condition as their original shares.”
The testator's widow died on 27th April 1894, and thereafter the trustees, acting under the trust-disposition and settlement, and the two minor children of the truster, presented a petition, in which they stated that the estate in their hands consisted of moveable property to the value of about £2600, and that the annual income thereof, which amounted to about £78, was the only fund available for the maintenance and education of the children. They therefore craved the Court, in the exercise of their equitable jurisdiction, to authorise and appoint them to apply the whole, or such part as they might think proper, of the income of the trust-estate for behoof of the testator's children.
After intimation the Court remitted to Mr A. H. Cooper, W.S., to inquire and report. Mr Cooper reported that the income of their father's estate was the only fund available for the maintenance of the children except their mother's estate, which amounted to less than £100. He pointed out that the children were without guardians for the purpose of the application, and that the next-of-kin were not called.
At the hearing reference was made to the cases of Mackintosh v. Wood, July 5, 1872, 10 Macph. 933; and Latta, June 5, 1880, 7 R. 881. Reference was also made to the 7th section of the Trusts (Scotland) Act 1867, whereby it is provided as follows:—“The Court may from time to time, under such conditions as they see fit, authorise trustees to advance any part of the capital of a fund destined, either absolutely or contingently, to minor descendants of the truster, being beneficiaries having a vested interest in such fund, if it shall appear that the income of the fund is insufficient or not applicable to, and that such advance is necessary for, the maintenance or education of such beneficiaries or any of them, and that it is not expressly prohibited by the trust-deed, and that the rights of parties other than the heirs or representatives of such minor beneficiaries shall not be prejudiced.”
At advising—
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Now, not to repeat the words of the clause, the conditions of a valid application to the Court are that the class of children—the family of children—must have an interest in the trust fund, and that no other persons can show an interest under the deed. If these conditions exist, the Court may grant the trustees power to make advances from the capital of the estate, even though the interest of any individual child may be contingent, because it is so put in the statute. The object of this remedial provision is to avoid the difficulty which arises, where, owing to the existence of a clause of survivorship as between children, it would not be held that a right to an absolute share vested in each child at the testator's death. But the statute recognises that provided the children as a family have the sole interest in the fund, and that there are no other funds applicable to their maintenance, power to apply this common fund may be granted. Now, I think we have before us exactly the case which the Act contemplates. There is no destination-over in this deed, and if the children were all in minority the only persons who could claim this fund would be the next-of-kin. These are the children themselves, and although in the case I am putting they are all dead, their collateral relatives do not take as next-of-kin in their own right, but as representing the children. This was established in the case of Lord v. Colvin, 23 D. 111, and the principle was recognised in the very carefully considered judgment of the House of Lords in Gregory's Trustees v. Alison, 16 R. (H. of L.) 10, and it appears to me to be quite unnecessary to call the next-of-kin of the children for whose behoof this application is made. The same considerations render it unnecessary to appoint a curator ad litem, because according to the report which is before us there is no other source of maintenance open to these children. The application is for their benefit, and my opinion, which I understand your Lordships agree with, is that it would be unnecessary to appoint a curator ad litem except for the protection of some interest in the children themselves. I am therefore of opinion that we may now grant the power craved.
The
The Court granted the prayer of the petition.
Counsel for the Petitioner— Burnett. Agents— Fraser, Stodart, & Ballingall, W.S.