Macdougall's Factor v Watson
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1908 |
| Date | 27 November 1908 |
| Docket Number | No. 39. |
| Court | Court of Session |
Lord Ardwall, Lord Justice-Clerk, Lord Low.
Liferent and FeeCasualtiesDuplications of Feu-dutyWhole Free Income.
By his will a testator directed the whole free income and revenue of his estate to be paid to his housekeeper during her life.
The testator's estate at his death in 1901 included superiorities and ground-annuals, in respect of which duplications were payable, some at fixed periods, some on each transfer or conveyance of the subjects, and a superiority in respect of which an untaxed casualty was payable at the entry of each heir or singular successor. After his death the judicial factor on his estate invested a portion thereof in superiorities and ground-annuals, in respect of which duplications were payable, some at fixed periods and some on each transfer or conveyance of the subjects. In certain cases the duplications fell due very shortly after the purchase of the superiorities by the judicial factor.
Held, in a special case, that all the duplications and casualties, whether arising from superiorities and ground-annuals belonging to the testator at the time of his death, or purchased by the judicial factor, fell to be considered as income of the estate, payable to the liferentrix.
The Rev. James Ewen Macdougall died a widower and without issue, in 1901, leaving a will by which he bequeathed to his housekeeper, Miss Margaret Anderson, the whole free income and revenue arising from the whole residue of my means and estate during her lifetime so long as she survives me. He made no provision for the disposal of the capital of his estate, and appointed no trustees or executors. Mr George Garioch Dalgarno, solicitor, Arbroath, was appointed judicial factor on his estate.
The testator left heritable estate to the value of 5500, and moveable estate amounting in value to between 14,000 and 15,000.
The heritable property belonging to the testator at the time of his death included the superiorities of seven feus, and one ground-annual, yielding the total sum of about 64 per annum. In the case of two of the feus, a duplication of the feu-duty was payable on the expiry of every 25th year from the date of entry under the charter. In the case of four of the feus, a duplication of the feu-duty was payable at and upon every transfer or conveyance of the feu. In the remaining case the entry of heirs and singular successors was untaxed. In the case of the ground-annual a duplication was payable on every transfer of the subjects.
After the death of the testator, the judicial factor invested upwards of 3500 of the moveable estate left by the testator in twenty-one superiorities and ground-annuals, yielding the sum of about 117 annually. In eighteen cases a duplication was payable at fixed intervals, varying from fifteen to twenty years, and in the remaining cases a duplication was payable on every transfer or conveyance of the subjects. In thirteen cases duplications, amounting in all to about 80, became payable within two years after the superiorities were acquired by the judicial factor.
Duplications and casualties, payable in respect both of the superiorities and ground-annuals belonging to the testator at his death and of those purchased subsequently, to the amount of 113, having fallen due since the death of the testator, the question arose whether they fell to be treated as capital or income, and this special case was presented, to which the parties were(1) the judicial factor on the testator's estate; (2) Mrs Margaret Campbell Macdougall or Watson and others, the persons in right of the whole capital of the estate, subject to the liferent; and (3) the liferentrix, Miss Margaret Anderson.
A statement was appended enumerating all the superiorities and ground-annuals, and relative duplications and casualties above mentioned.
The first and second parties maintained that the duplications and casualties already uplifted, and also those which should fall due during the survivance of the liferentrix, were to be considered as capital of the estate and did not fall to be paid to the third party.
The third party maintained...
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