Scottish Court of Session Decisions

John Pinkerton Laidlaw and others, the testamentary trustees of the late John Robertson, merchant, Glasgow, who died on 5th September 1892 survived by his widow Jane Black or Robertson, and two sons, James Sangster Robertson and Robert Black Robertson, presented a petition seeking authority to advance to each of the sons so long as he was unable suitably to maintain himself a yearly allowance of £150 out of the surplus income or otherwise out of the capital of the trust estate.

The trust-disposition provided, inter alia—“( Sixth) I direct and appoint my trustees to make payment to the said Jane Black or Robertson, my wife, in the event of her surviving me, of a free yearly annuity of Three hundred pounds sterling,… which annuity shall be alimentary for behoof not only of my wife but for behoof of our children who may remain in family with her and be unable to support themselves, and to this purpose she shall be bound to apply same; And which annuity shall be payable as well out of capital as out of the income of my estate if the latter should at any time be insufficient: ( Seventh) In the event of the yearly income from the residue of my estate being more than sufficient during my wife's life to pay the said annuity … my desire is that my trustees should apply, and they are hereby instructed and directed to apply, the surplus or such part thereof as my trustees may in their discretion and from time to time think advisable or expedient for the purpose of providing a liberal education to my children or any of them, and which sums … shall he paid out of and be a charge on the said surplus, and any surplus not required shall be accumulated during my wife's life and added to the residue of my estate: ( Eighth) Subject to the foregoing provisions my trustees shall hold and apply the whole residue of my estate for behoof of my children born or to be born to me equally between and among them, share and share alike, jointly with the lawful issue of any one of them who may decease, such issue taking not only their parent's share but along with the other surviving children the share of any child's share which may lapse through decease (the division being per stirpes) payable after my wife's death to my children as and when they respectively reach majority and to grandchildren on the arrival at majority of my youngest child … and to prevent doubts it is hereby expressly provided that the shares of my estate shall become vested interests in the persons of my children and grandchildren at and only after the death of my wife and upon the arrival of the respective periods of payment before stated, but notwithstanding this my trustees may, in their sole discretion, even during my wife's life, lay out, pay over, and advance before the said term of payment, if they shall think proper, any part not exceeding one-half of the capital falling prospectively to each child for fitting them out in business or in marriage or otherwise as the said trustees may deem for the advantage of such child or children, and such advance shall be considered as in anticipation pro tanto of such child's share.…”

The petitioners averred—“The said James Sangster Robertson is 24 years of age, and the said Robert Black Robertson 22 years of age. They were both educated at public schools in England and Scotland. The said James Sangster Robertson was for a few years a bank clerk at Godalming, and for a few months a clerk in London, but since June last, when he took ill and had to give up his situation, he has been, and at present is, in bad health, and unable to follow any occupation, being under medical treatment.

The said Robert Black Robertson is engaged as a clerk in the principal Probate Registry in London. His salary is £100 per annum at present, rising by yearly increases of £10 to £200. For a considerable time to come he states that he will be unable to maintain himself out of his own salary. Mrs Robertson occupies rooms in a boarding house in Queen's Gate, London, and her two sons occupy a room in the same house.

In these circumstances the testator's widow has intimated that the annuity provided to her in the terms aforesaid is insufficient to maintain herself and her sons in a manner suited to their position in life, and both sons have applied to the trustees for yearly allowances from the trust funds until such time as they may be able out of their own salaries to maintain themselves. The yearly allowance asked is £150 to each of the sons, and the petitioners consider that at present, and until some change of circumstances take place, the sum suggested is reasonable in amount.

“According to the last accounts of the trust, for the year ending 31st December 1907, the total estate of the trust amounted to £35,858, 2s. 11d. in addition to a house property ‘Ellangowan,’ Helensburgh, of which the trustees are directed to allow the widow the liferent use and enjoyment.

Page: 141↓

With regard to the trust funds, at presen there is a yearly surplus of from £600 to £700 after meeting the annuities provided for in the trust-disposition and the expenses of the trust. This surplus is at present being accumulated with the capital of the trust.”

The petition was served on the patties on whom as next-of-kin the estate would devolve in the event of the death of the testator's sons without taking a vested interest and without leaving issue. No answers were lodged.

At the hearing in the Summar Roll counsel for the petitioners argued—The provision made by the testator for his widow and children was not in proportion to the estate left by him. The advances for which authority was sought were very much less than the testator authorised for the purpose of fitting the children out in business or in marriage, and would not even exhaust the income of the estate. The Court had exercised its nobile officium in similar circumstances— Muir v. Muir's Trustees, December 10, 1887, 15 R. 170, 25 S.L.R. 119.