Edgar's Trustees v Edgeware
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1914 |
| Date | 24 November 1914 |
| Docket Number | No. 22. |
| Court | Court of Session |
Lord Dundas.
Succession—Fee and liferent—Incidence of burdens—Casualty of composition—Lands held in trust for liferenter and fiar—Superior and vassal—Casualty—Conveyancing (Scotland) Act, 1874 (37 and 38 Vict. cap. 94), sec. 5.
Held that sec. 5 of the Conveyancing Act, 1874, which in certain events imposes a liability for the payment of compositions both upon a liferenter and a fiar of lands in whose favour an entry is implied under the Act, does not apply where lands are held in trust for a liferenter and a fiar; and accordingly that, where lands were held by testamentary trustees for behoof of a liferenter and fiars, a taxed composition, exigible every fifteen years, fell to be paid out of the capital of the trust-estate and was not chargeable against the revenue falling to the liferenter.
Miss Rebecca Edgar, who died on 28th January 1893, was proprietrix of the Shaws Water Chemical Works, Greenock, and after her death the property continued to be held by the trustees acting under her trust-disposition and settlement. A question having arisen with regard to the incidence of a casualty which became payable in respect of the property, this special case was presented to the Court, the first parties being Miss Edgar's trustees, and the second party being Miss Maybel Jane Edgeware, who was entitled under the settlement to the liferent of the residue of Miss Edgar's estate.
The following narrative is taken from the opinion of Lord Dundas:—‘By her settlement the testatrix, after providing for payment of certain legacies and annuities of considerable amount,directed her trustees to hold the whole residue and remainder of her means and estate for behoof of Miss Edgeware (the second party) in liferent for her liferent use allenarly and her lawful children in fee; and, in the event of Miss Edgeware dying without leaving lawful issue, the trustees were directed, after paying legacies amounting in all to £9000 to charitable and religious institutions named, to divide the whole residue and remainder of the estate amongst such other charitable and religious institutions in Glasgow and Greenock as they in their sole discretion might think proper. We are not informed of the total amount or value of Miss Edgar's residue, but it must have been considerable. It included a heritable subject of which she was proprietrix. By the feu-contract under which this property was held, a taxed composition of £112, 1s., probably a duplicand of the feu-duty, becomes due from singular successors on each sale or transmission of the feu. A composition was paid in May 1894 by the trustees; and another composition became due, after the lapse of fifteen years, in accordance with the terms of section 5 of the Conveyancing (Scotland) Act, 1874,* in May 1909. The trustees paid this composition to the superior, and debited it against revenue in the trust accounts. The question we have to decide is whether the composition was payable out of the capital of the trust-estate or out of revenue.’
The questions of law for the opinion and judgment of the Court were:—‘(1) Is the casualty referred to payable out of the capital of the trust-estate of the late Miss Edgar? (2) Is the casualty referred to payable out of revenue, and to be borne by the liferentrix?’
The case was heard before the Second Division on 30th October 1914.
Argued for the first parties;—The composition was chargeable
against revenue. The usual rule applied that ‘liferenters as they were entitled to the profits must also bear the burdens attending the subject liferented,’1 including not merely annual payments but also burdens recurring at regular intervals, such as (in the present case) a composition exigible every fifteen years, which in essence was just an additional feu-duty. The composition...
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