2 Dunl 225
| Jurisdiction | Scotland |
| Judgment Date | 12 December 1839 |
| Date | 12 December 1839 |
| Docket Number | No. 52 |
| Court | Court of Session (Inner House - First Division) |
Ld. Cockburn N.
Trust—Presumed Intention—Facility—Vesting—Parent and Child.—
JAMES SMITTON, who was infeft in fee-simple in part of the lands of Broadfold and others, in Perthshire, executed a trust-disposition on the narrative of ‘considering that there was no contract of marriage entered into between me and Ursula Tod or Smitton, my wife, nor any provision made for her and the children of the marriage between her and me; and further, that I have become convinced, that from a natural facility of disposition, I am not well calculated for conducting my worldly affairs in a profitable manner, and that it would be for my own advantage, and the advantage of my wife and children, if the whole of my means and estate were put under trustees,—Therefore, and having full confidence in the persons after named and designed for executing the trust hereinafter committed to them, I do hereby give, grant, assign, and dispone to and in favour of George Tod, (and others,) as trustees for the purposes after mentioned,’‘heritably and irredeemably, but always with and under the burdens, &c., after mentioned: All and whole those parts and portions of the town and lands of Broadfold,’ &c. ‘And further, I do hereby give, grant, assign, and dispone to and in favour of my said trustees and their aforesaid, All and sundry other lands and heritages, and all debts and sums of money, heritable and moveable, which presently belong to me, with the whole title-deeds, vouchers, and instructions thereof, together with the whole corns, cattle, furniture, books, silver-plate, gold, coined or uncoined, and in general, my whole means and estate, whereever situated, or of whatever kind or denomination; but in trust always, for the uses,’ &c., after mentioned; 1st, ‘Declaring that these presents are to have and take effect from and after the date thereof, and my trustees shall then enter into the full management and possession of the lands and others generally and particularly above disponed, and shall have power and liberty, as full power, liberty, and commission is hereby given and granted to them, to sell and dispose of the whole lands,’ &c., ‘or to burden the same with debt,’ &c. 2d, The trustees were to collect all debts due to Smitton, ‘and pay off the whole debts presently due by me.’ 3d, The trustees were to pay to the said Mrs Ursula Smitton, ‘during all the days of my natural life, in case she shall live so long, an annuity of £60 sterling, payable half-yearly by equal portions, beginning the first payment thereof, being £30 sterling, at the term of Whitsunday next,’ &c. It was provided that this annuity should be enlarged to £70 after Smitton's death, payable to Mrs Smitton as long as she continued a widow. It was also declared ‘that the annuity of £60 sterling, hereby provided to the said Ursula Tod or Smitton during my life as aforesaid, shall not be subject to my jus mariti or right of administration, the same being hereby expressly secluded; nor shall the same be liable to my debts or deeds, nor attachable by the diligence of my creditors, in any manner of way.’ It was farther declared that the annuity to Mrs Smitton, being alimentary, should not be affectable by her debts or deeds, and should, In the event of her entering into a second marriage, be liable to be restricted or wholly recalled at the pleasure of the trustees. 4th, After Mrs Smitton's death, the trustees were directed to pay Smitton, if surviving, an annuity of £70, declaring that it shall be ‘purely alimentary for the support of myself and my family, and shall not be assignable by me, nor attachable by the diligence of my creditors, any law or practice to the contrary notwithstanding. 5th, Immediately after the death of the longest liver of me and the said Ursula Tod or Smitton, the said trustees shall, after deducting’ the trust-expenses, and all debts and expenses ‘affecting the subject-matter hereof, hold the residue of the whole subjects above disponed, for the benefit of the child or children procreated or to be procreated of my present or any future marriage into which I may enter, equally among them, share and share alike; declaring, that if in the meantime any of my said children shall have died leaving lawful issue, such issue shall be entitled to the share of their deceasing parent, and that share and share alike: Declaring farther, that the share of such of my said children as shall be major, or, if females, married at the time of the death of the longest liver of me and the said Ursula Tod or Smitton, shall be immediately paid over to them; but declaring that the shares of such of my said children as shall then be minors shall be held by the said trustees for their use and behoof, until they shall respectively attain the age of majority, or, being females, shall be...
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