Scottish Court of Session Decisions

Henry James Watson and others, the testamentary trustees of the late Robert Curle, shipbuilder in Glasgow, acting under his trust-disposition and settlement, dated 13th December 1878 and registered 23rd June 1879, first parties; Mrs Isabella Curle or Millar and others, second parties; and Ethel Mary Millar and others, third parties, brought a special case to decide in what way the duplicands of feu-duties and ground-annuals belonging to the trust-estate were to be dealt with.

The second parties were the testator's son and daughters, to whom had been left a liferent of the residue of the estate. The third parties were the children of the second parties, and were entitled to the fee of the residue of the estate.

The truster died on 8th June 1879. His trust-disposition and settlement, inter alia, directed—“And further, I direct my trustees to hold and retain the residue and remainder of my means and estate for behoof of my three children, the said Robert Barclay Curle, Mrs Isabella Curle or Millar, and Mrs Jane Curle or Lamont, equally amongst them, share and share alike, the said shares being to be retained and invested as hereinafter mentioned, that is to say, I direct my trustees to hold and retain and invest the said shares in their own names as trustees foresaid for the respective liferent uses allenarly of my said son and two daughters, and for behoof of their lawful issue respectively in fee, in such proportions among such issue respectively. if more than one child, and whether there be one or more children, subject to such restrictions and conditions as such son or daughters may respectively direct by any deed or writing under their hands or signed by them respectively, to take effect at their decease respectively, and, failing such appointment, equally among such issue, if more than one child, share and share alike, but with power to my son and daughters who are or may be married to confer upon their wife and husbands respectively, if surviving, a liferent of not more than one-third of the whole of their respective shares should they respectively think proper, notwithstanding of their leaving a child or children: And in the event of my son or daughters, or any of them, dying without leaving lawful issue, or of such issue all dying before majority or marriage, I direct my trustees to hold and retain the fee or capital of the said shares for behoof of the survivors of my said son and daughters, equally among them, share and share alike if more than one, and in the event of only one surviving, for his or her behoof in the same way as is hereinbefore provided with regard to the shares originally taken by the said survivors or survivor in their own right:… And further, I authorise and empower my trustees, not with standing any conditions and limitations which my said son and daughters may appoint in regard to the capital of the shares falling to their issue respectively, to pay to or for behoof of such of the issue of my said son and daughters as may be in minority at the decease of their parent the annual proceeds of their shares respectively, or so much of such annual proceeds as my trustees shall think necessary for their maintenance and education, accumulating the remainder, if any, for their behoof respectively, and adding the same to the capital of their shares until they shall respectively attain majority, if sons, or attain majority or be married, whichever of these events shall first happen, if daughters.”

The case stated—“7. Upon the death of the said Robert Curle his trustees completed their title to his heritable and moveable estate (which amounted in value to about £160,000), and proceeded to realise the same; and after fulfilling the first four purposes of the trust settlement they proceeded to invest, and still hold, the residue of the estate for behoof of the second parties in liferent and the third parties in fee. 8. At the time of his death the said Robert Curle was proprietor of a ground-annual of £62, 10s., payable from a property in Stirling Road, Glasgow, which was then valued at £1240. Under the title to the ground annual a duplication was payable every

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nineteenth year, and one duplication of £62, 10s. fell due and was paid at Whitsunday 1886. This ground-annual was redeemed by the owners of the property in 1899 at the price of £1250, being twenty-five years' purchase, in terms of a clause to that effect in the contract of ground-annual. 9. Among other investments made by them the trustees purchased at various dates between 1880 and 1890 certain feu-duties and ground-annuals at a total cost of £31,404, 6s. 11d., and these are still held by them. Of these the titles to the following feu-duties and ground-annuals provide for duplications being payable every nineteenth year from the date of entry, namely, Cross-hill feu-duties, Watson Street feu-duty, Ingram Street ground-annual, and Garscube Road ground-annual. In the case of the Dundee and Arbroath Railway Company feu-duty a duplication is only payable every twenty-fifth year, and in the case of the South York Street feu-duty a duplication is payable on the entries of heirs and singular successors. In the case of feu-contracts executed before the Conveyancing and Land Transfer Act 1874, the deeds provided that the duplication was ‘in full of all composition or relief that may be exacted or required from the vassal, his heirs, and singular successors;’ while in feu-contracts executed after that Act came into operation reference to casualties is omitted. In the deeds relating to the ground-annuals the duplications are only referred to as duplications or double payments of the ground-annual.”

The ground-annuals and feu-duties (including that redeemed) amounted to about £1300 a-year.

The case gave the following statement as to duplications:—

Statement showing total amount of duplications collected and to be collected from 1886 (date when first duplication received) to 1915.

Year.	Situation.	Amount.
1886	Stirling Road	£ 62 10 0
1890	Dundee and Arbroath Railway Company	176 19 8
1891
1892	Ingram Street	198 10 0
1893	Crosshill	18 0 10
1894	Watson Street	137 10 0
1895	Crosshill	28 3 4
1895	Garscube Road	111 10 0
1896	Crosshill	37 16 0
1897
1898	Crosshill	53 15 0
1899	Do.	247 11 10
1900	Do.	34 1 4
1901
1902	Crosshill	15 13 10
1903	South York Street	10 10 0
1903	Do.	14 14 0
1903	Do.	16 16 0
1904	Crosshill	32 0 0
1905	Do.	69 6 5
1906	Do.	51 7 5
1907
1908
1909
1910
1911	Ingram Street	198 10 0
1912	Crosshill	£18 0 10
1913	Watson Street	137 10 0
1914	Crosshill	28 3 4
1914	Garscube Road	111 10 0
1915	Dundee and Arbroath Railway Company	179 19 8

The second parties maintained that the duplications formed part of the revenue or income of the estate and so fell to be paid to them as liferenters. The third parties maintained that the duplications fell to be considered as capital and did not fall to be paid to the liferenters.

The following questions were, inter alia, submitted:—“(1) Does the duplication of £62, 10s. of the ground-annual over the Stirling Road property, held by the deceased prior to his death, and paid to the trustees in 1886, fall to be considered as income or revenue of the estate? (2) Do the duplications already received, and those which will afterwards become due, in respect of the ground-annuals purchased by the first parties as trust investments, fall to be considered as income or revenue of the trust? (3) Do the duplications of feu-duties already received and to be received in respect of the Crosshill, Watson Street, and Dundee and Arbroath Railway Company feu-duties fall to be considered as income or revenue of the estate? (4) Do the duplications already received and to be received in respect of the South York Street feu-duty fall to be considered as income or revenue of the estate?”

After the argument (opinions unrevised)—