McNair's Executrix v Litster
Jurisdiction | Scotland |
Judgment Date | 15 November 1938 |
Docket Number | No. 9. |
Date | 15 November 1938 |
Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Stevenson.
TrustProof of trustAct 1696, cap. 25Action by executrix of testator for declarator of right to War StockAverments by pursuer that testator in order to avoid payment of income tax had registered in name of defender stock purchased by himStock certificates retained in hands of testatorInterest warrants handed over by defender to testatorWhether proof limited to writ or oath.
An executrix brought an action for declarator of right to certain holdings of War Stock. The pursuer averred that the testator had purchased the stock with his own money and registered it in name of the defender, his daughter, in order to avoid payment of income tax; that he had retained the stock certificates in his own hands; and that the defender had regularly endorsed and handed over the interest warrants to him for his own use. The defender, who averred that the testator had made a gift of the War Stock to her, maintained that, as the pursuer's averments implied that the defender was in the position of a trustee, they could, under the Act 1696, cap. 25, be proved only by the defender's writ or oath.
Held that the pursuer's averments might competently be provedprout de jure in respect that they did not disclose a case of trust, the retention of the stock certificates by the testator being inconsistent with the transfer of a right of property to the defender as trustee.
Mrs Marion M'Nair, the widow and executrix of James Hutcheon M'Nair, brought an action against Mrs Grace Litster, concluding for declarator "that the pursuer, as executrix foresaid, is in right of (a) 200 3 per cent War Stock represented by certificate No. W.878784 dated 19th July 1929 in name of the defender, (b) 300 3 per cent War Stock represented by certificate No. W. 878785 dated 19th July 1929 in name of the defender, and (c) 500 War Stock represented by certificate No. W. 787332 dated 22nd March 1930 in name of the defender;" and for decree ordaining the defender to execute and deliver transfers of the stocks, and to endorse and deliver a relative interest warrant.
The averments of parties were, inter alia:(Cond. 1) "The pursuer is the widow of James Hutcheon M'Nair, antique dealer, who resided at 2 Lochrin Place, Edinburgh, and who died on 6th February 1937. The said James Hutcheon M'Nair left a holograph will dated 20th October 1933 in terms of which he left his whole estate to the pursuer, who, as his residuary legatee, was confirmed as his executrix by confirmation dated 21st April 1937. The defender is a daughter of the said James Hutcheon M'Nair and of the pursuer, and is the wife of James Litster." (Ans. 1) "The designations of the pursuer and the defender are admitted (Cond. 3) "The deceased, who carried on business as an antique dealer at 82 Lady Lawson Street, Edinburgh, had saved a certain amount of money, and in 1929 and 1930 he invested 1000 in 3 per cent War Stock. He bought this stock in three lots, namely, 200 stock represented by certificate No. W. 878784 dated 19th July 1929; 300 stock represented by certificate No. W.878785 dated 19th July 1929; and 500 stock represented by certificate No. W.787332 dated 22nd March 1930. The holdings were in each case bought by the deceased...
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Sinclair v Commissioners of Inland Revenue
...name of his son and the income therefrom was rightly regarded by the Crown as that of the Appellant, and the case of McNair v. Litster, 1939 S.C. 72, was relied (3) That the Appellant had rightly been regarded as the owner of and liable to be charged to tax in respect of the income from the......
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Sinclair v Commissioners of Inland Revenue
...name of his son and the income therefrom was rightly regarded by the Crown as that of the Appellant, and the case of McNair v. Litster, 1939 S.C. 72, was relied (3) That the Appellant had rightly been regarded as the owner of and liable to be charged to tax in respect of the income from the......
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