Peel's Trustees v Drummond
| Jurisdiction | Scotland |
| Judgment Date | 02 July 1936 |
| Docket Number | No. 64. |
| Date | 02 July 1936 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
ProcessPetitionCompetencyTrustPetition for directionsDistribution of estateQuestion for immediate decisionMarriage-settlement empowering wife to re-settle fund on husband and issue of a subsequent marriageHusband divorced and afterwards dyingWhether second marriage contracted during first husband's lifetime a subsequent marriageAdministration of Justice (Scotland) Act, 1933 (23 and 24 Geo. V, cap. 41), sec. 17 (vi)Rules of Court, 1936, Chap. IV, Rules 4143.
Marriage-contractConstructionPower to wife on predecease of husband to resettle fund on husband and issue of subsequent marriageWife divorcing husband and contracting second marriage during his lifetimeClaim of wife on decease of first husband to re-settle fundWhether second marriage a "subsequent" marriage.
An antenuptial marriage-settlement provided that the trustees should pay to the wife the free annual proceeds of the trust fund during her life as an alimentary provision; that, on her death, they should (subject to certain provisions for the husband if he survived) hold the fund for the children of the marriage, and pay and make over the fund under such conditions as the wife might appoint, and, failing appointment, among the children equally; that the funds falling to the children, failing appointment, should in the case of sons be payable to those who had attained the age of
21 at the first term after the wife's death, and to those who had not then attained that age at the first term after reaching that age; and that the capital or shares thereof should vest at the time or times of payment. Power was conferred on the wife, in the event of her husband predeceasing her, to withdraw from the trust one-half of the trust fund, and to settle it on the husband and issue of a "subsequent marriage."The parties were duly married, and one child, a son, was born of the marriage. The wife afterwards divorced her husband, and married a second husband during her former husband's lifetime. After the former husband's death, she intimated to the marriage-settlement trustees that she desired to withdraw one-half of the trust fund for the purpose of settling it on her second husband and the issue of her second marriage.
Doubts having arisen as to whether a second marriage contracted during the divorced husband's lifetime was a "subsequent marriage" in the event of which the wife was entitled to exercise the power of re-settlement, the marriage-settlement trustees presented a petition to the Court for directions on this question.
The Court having, ex proprio motu, raised the question of the competency of the petition,
Held (1) that the petition was competent, in respect that it raised a question relating to the distribution of the trust-estate under the petitioners' charge as to which they were obliged to take an immediate decision; (2) that the procedure taken was appropriate, the necessary contradictors being present in the process; and (3) that the wife's second marriage was a "subsequent marriage" within the meaning of the marriage-settlement; and, accordingly, that she was entitled to exercise the power of re-settlement conferred on her; and direction to this effect pronounced.
Observations per curiam on the circumstances in which a petition by trustees for directions may competently and appropriately be presented.
Andrew's Trustees v. Maddeford, 1935 S. C. 857,commented on.
By antenuptial marriage-settlement in Scottish form, dated 14th and 15th November 1919, between (1) Violet Margaret Florence Buchanan-Jardine, only daughter of Sir Robert William Buchanan-Jardine, baronet, of Castlemilk, Dumfriesshire, (2) Captain Edmund Owen Ethelston Peel, and (3) the said Sir Robert William Buchanan-Jardine, the third party, in contemplation of the marriage between the first and second parties, bound and obliged himself within twelve months after the marriage to pay or transfer to the marriage-settlement trustees the sum of 250,000 in trust for the purposes therein set forth. This obligation was duly implemented.
The trust purposes were, shortly, the following:(first)for payment of the expenses of the trust; (second) for payment to the first party of the free annual proceeds of the trust fund during her life as an alimentary provision; (third) in the event of the second party surviving the first party, the trustees were directed out of the income of the trust fund to pay to him an alimentary annuity of a certain amount; (fourth) after the death of the first party the trustees were directed to hold the trust fund (subject to payment of the said annuity to the second party and of any life interest in the trust fund which might be bequeathed to him by the first party in terms of a power conferred upon her by the said fourth purpose) for the child or children of the marriage; and to pay and make over the fund in such shares, at such times, in such manner, and under such conditions, and subject to the power of limitation after mentioned, as the first party might appoint, and, failing appointment, among such children equally. The funds falling to such child or children, failing appointment as aforesaid, were to be payable to such of them as should have attained the age of 21 in the case of sons, or should have attained that age or been married in the case of daughters, at the term of Whitsunday or Martinmas immediately after the death of the first party, and to such of the children as should not at said time...
To continue reading
Request your trial
-
Blair C Nimmo+gerard A Friar Joint Liquidators Of The Scottish Coal Company Limited For Directions
...which was competent only if all contradictors were before the court and the facts were not disputed (Peel's Trustees v Drummond 1936 SC 786). I do not see the matter as one of competency. A liquidator as an officer of court has the right to apply to the court for directions which relate to ......
-
Michael James Meston Reid Judicial Factor Over The Estate Of M For Directions
...of the factory estate and require an immediate decision. The conditions stated by Lord President Normand in Peel’s Trs v Drummond 1936 SC 786 at 794 are met. It was quite proper for the petitioner to seek the directions of the court, and we find him entitled to his expenses out of the facto......
-
Directions By Donald Iain Mcnaught Trustee On The Sequestrated Estates Of Gary Brown
...cases relating to similar procedures for trustees under trust deeds (Andrew's Trustees v Maddeford 1935 SC 857; Peel's Trustees v Drummond 1936 SC 786; Henderson's Trustees v Henderson 1938 SC 461 and Grant's Trustees v Hunter 1938 SC 501). The learned author goes on to say that the Court o......
-
Petitions By Janusy Dominic Joseph Patrick Tomala And Gillespie Macandrew (trustees) Limited For Directions Under Section 6(vi) Of The Court Of Session Act 1988 And Rules 63.4 And 63.5 Of The Rules Of The Court Of Session 1994
...in their hands until it had been determined in a competent judicial process how it was to be distributed. [17] In Peel’s Trs v Drummond 1936 SC 786, Lord President Normand (at page 794) expressed the view that in a petition for directions the Court ought not to refuse to entertain any quest......