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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bayne's Trustees v. Bayne [1894] ScotLR 32_31 (3 November 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0031.html
Cite as: [1894] SLR 32_31, [1894] ScotLR 32_31
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
v.
Facts:
A testator provided—“In respect that Miss E. D. has arranged with me to take entire charge of my children in the event of my decease, I hereby direct my trustees to make over to her the house at present occupied by me, … together with the whole furniture, … and that during all the days of her natural life, and so long as she shall not enter into any marriage after my decease.”
After the testator's death, held (dub. Lord Young) that the trustees were liable for the feu-duty, assessments in respect of property, and landlord's repairs, but that the widow must pay the assessments in respect of occupancy, including the proportion of taxes ordinarily payable by an occupant, and tenant's repairs. Clark v. Clark, January 19, 1871, 9 Macph. 435, followed.
Christopher Alexander Bayne died on 1st December 1881 leaving a trust-disposition and deed of settlement dated 9th April 1873, in which he assigned and disponed his whole means and estate to trustees for the purposes therein specified. The fourth purpose of the said trust-disposition and settlement was in the following terms:— “Fourth, In respect that the said Miss Emma Duckworth has arranged with me to take entire charge of my children in the event of my decease, I hereby direct my trustees to make over to her the house at present occupied by me at Craig—view aforesaid, together with the whole furniture, furnishings, plate, linen, and every article of a household character therein, and that during all the days of her natural life, and so long as she shall not enter into any marriage after my
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decease, and I also direct my trustees to allow and pay to the said Miss Emma Duckworth from the annual proceeds and profits, or from the capital of my estate, an annuity of £500 sterling per annum, free of all legacy-duty, … and such annuity shall be purely alimentary, and shall not be assignable … nor dischargeable, … and it shall not be in any way subject to the diligence of her creditors. But it is hereby expressly declared that the foresaid liferent and alimentary provisions conceived in favour of the said Miss Emma Duckworth shall be subject to the burden of maintaining, alimenting, and educating such of my children as may be alive at the time of my death so long as they may reside with her, or so long as and to such an extent as all or any of them may be unable properly to support themselves, it being my express desire as after mentioned that my said children shall be entrusted solely to the care of the said Miss Emma Duckworth so long as she remain unmarried as aforesaid.” … By the fifth purpose of the trust-disposition and settlement it was provided that if Miss Emma Duckworth should marry after the testator's death the liferent of the house should cease, and the annuity be restricted to £250. Subsequent to the date of the trust-disposition and settlement the testator married Miss Emma Duckworth. After the testator's death she occupied the house, Craigview, Murrayfield, and used the furniture therein as provided in the fourth purpose of the trust-disposition and settlement, and she also received payment of the annuity from the trustees.
In 1894 doubts arose regarding the construction of the said trust-disposition and settlement, Mrs Emma Duckworth or Bayne being of opinion that her husband's trustees were bound out of the general trust-estate under their charge to pay the whole annual burdens and assessments affecting the said house, Craigview, Murrayfield, whether in respect of property or occupancy, and also to pay for all repairs thereon; while the trustees, on the other hand, maintained that, upon a true construction of the said trust-disposition and settlement, the truster's intention was that Mrs Bayne should bear all such charges and expenses.
A special case was accordingly presented in order to obtain the opinion of the Court on the following questions by (1) Mr Bayne's trustees, and (2) Mrs Bayne—“(1) Whether the first parties are entitled and bound to make payment of the annual charges in respect of the said house, Craigview, Murrayfield, including (1) the feu-duty; (2) assessments in respect of property; (3) assessments in respect of occupancy; (4) landlord's repairs; and (5) tenant's repairs, or any of them ? or (2) Do the said annual charges or any of them fall to be borne by the second party?”
Argued for first parties—The conveyance to the widow being an absolute liferent, the second party was bound to pay all the burdens on the house—Bell's Prin., sec. 1062; Erskine ii. 9, 61. This case was distinguished from that of Clark v. Clark, Jan. 19, 1871, 9 Macph. 435, as in the latter the words of the deed were “give her the use of,” while in the present case the words were “make over to.”
Argued for second party—The words “make over” were not equivalent to “dispone.” The use only of the house was given to the widow. The case of Clark ruled the present.
At advising—
The question which has arisen under this clause is, whether Mrs Bayne, the lady who was Miss Duckworth when the will was made, is liable to pay certain burdens, taxes, and expenses attached to the house in question.
The contention of the trustees under the settlement is that Mrs Bayne must bear the burdens and charges which would be payable in respect not only of occupancy but of property. Mrs Bayne on the other hand maintains that upon a true construction of the deed she has only an occupancy, and is not liable for any charges properly falling upon a proprietor.
I am of opinion that the view maintained by Mrs Bayne is sound. The direction to the trustees is to make over the house to her during her life, and as long as she shall remain unmarried, and under that direction the trustees have allowed her to continue to occupy, the direction being carried out without any legal formality, but simply by giving her the use of the house. Should she marry again, they would be bound to deprive her of that use whenever that event occurred. And as long as they in present circumstances have her in peaceable occupation of the house, the purpose of the testator is fulfilled. Mrs Bayne is not the proprietor, but only an occupant. Therefore she cannot, as I think, be liable for feu-duty or for assessments in respect of property. Further, she cannot, I think, be liable for repairs, with which as a mere occupant she has no concern. It is the duty of the proprietor to keep the building and its approaches, &c., in repair.
On the other hand, charges which are properly such as are paid by an occupant should, as it appears to me, be paid by Mrs Bayne, she being an occupant free of charge. As the Lord President said in the case of Clark v. Clark's Trustees—practically a similar case to this—“It is only
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I would therefore propose that we should answer the questions by finding that the first parties must pay the feu-duty, property assessments, and repairs, and that the second party must pay the assessments in respect of occupancy, including the proportion of ordinary taxes payable by an occupant.
The Court pronounced the following interlocutor:—
“Answer the first question by declaring that the first parties are bound to make payment of the annual charges numbered (1), (2), and (4), and that they are not bound to pay the charges numbered (3) and (5): Find it unnecessary to answer the second question.”
Counsel for First Parties— Macfarlane. Agents — Morton, Smart, & Macdonald, W.S.
Counsel for Second Party — Dewar. Agents— Cornillon, Craig, & Thomas, S.S.C.