Stewart's Trustees v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 24 June 1931 |
| Date | 24 June 1931 |
| Docket Number | No. 80. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Fee and Liferent—Capital or income—Casualties—Redemption of casualties—Direction in marriage-contract to pay income to husband including "all casualties of superiority and sums in lieu thereof"—Husband's rights in sums paid in redemption of casualties—Husband's rights in additional feu-duties paid in commutation of redemption price of casualties—Feudal Casualties (Scotland) Act, 1914 (4 and 5 Geo. V. cap. 48), secs. 14 and 16.
The Feudal Casualties (Scotland) Act, 1914, by sec. 14, authorises persons in actual receipt of the income of any estate of superiority to exercise all the powers by the Act conferred upon superiors. Sec. 16 provides that the compensation payable in respect of casualties which are the subject of a trust shall be subject to the same trusts as are applicable to the casualties.
A husband by his marriage-contract, dated in 1904, conveyed certain superiorities to the trustees appointed thereunder. The trust purposes were, inter alia, for payment to the husband during his life of the income of the trust-estate, "including in such income … all casualties of superiority and sums in lieu thereof." The trustees were directed to pay the income, on the husband's death, to the wife, and to hold the capital for the children of the marriage, with a destination-over. The husband, who was empowered by the contract to collect the income, negotiated the redemption of casualties under the Feudal Casualties (Scotland) Act, 1914, and received the sums paid in redemption. Certain vassals commuted the redemption price of their casualties into additional feu-duties.
Held that the husband was entitled to negotiate the redemption of the casualties; but that he was not entitled to the capital of the sums paid in redemption, or to receive in perpetuity as part of his estate the additional feu-duties paid in commutation of the redemption price, in respect that, the purpose of the contract being to give the husband the income only and to preserve the capital of the trust-estate, the words "sums in lieu thereof" could not be construed as giving the husband a right to payments which represented capital.
The late William Lyall Stewart by his antenuptial contract of marriage, dated 18th and 19th April 1904, conveyed to the trustees thereunder certain superiorities in Edinburgh and Glasgow, and assigned to them "the feu and blench duties and casualties of superiority and sums in lieu thereof including compositions and duplicands due and to become due."
The trust purposes were, inter alia:—" (Second) For payment to the husband during his lifetime of the free annual income of the Trust Estate including in such income all income accrued but unpaid at the time when the Trust Estate falls under the operation of these presents and all casualties of superiority and sums in lieu thereof (including compositions and duplicands) due and to become due; Declaring that the husband shall be entitled by himself or his Agents if and when he shall so elect to collect the said income from the parties by whom the same is payable; and that the trustees shall be bound to grant such Factories and Commissions Mandates or other writings as may be necessary to enable the husband or his Agents so to collect the said income and to give valid receipts and discharges to the feuars vassals or other parties paying the same the Trustees during the subsistence of such Factories and Commissions Mandates or other writings being relieved of all responsibility for or in connection with said income."
The trustees were further directed to pay the income of the trust-estate, on the husband's death, to the wife, to hold the capital for behoof of the children of the marriage, and, in the event of the marriage being dissolved without issue, to pay the capital in certain proportions as the husband and wife might respectively direct.
In terms of the provision quoted above, Mr Stewart collected and received the feu-duties and duplicands. In consequence of the passing of the Feudal Casualties (Scotland) Act, 1914,1 it became necessary to provide for the extinction of the casualties, in respect of the superiorities conveyed to the trustees, either by payment of a sum in redemption of all future casualties, or, in the option of the vassals, by commutation of the redemption prices into additional feu-duties. In certain cases the vassals elected to redeem their casualties by capital payments, and the sums so paid were received by Mr Stewart, who carried through the negotiations with the vassals. In other cases the vassals elected to commute the redemption prices of their casualties into additional feu-duties.
Mr Stewart died on 5th September 1924, leaving a trust-disposition and settlement, dated 13th February 1923. There were no children of the marriage. After Mr Stewart's death questions arose, inter alia,as to whether he was entitled to receive the sums paid by the vassals in redemption of casualties, and as to whether the fee of the additional feu-duties paid in commutation of the redemption prices belonged to him. A special case was, accordingly, presented for the opinion and judgment of the Court of Session.
The first parties, who were Mr and Mrs Stewart's marriage-contract trustees, offered no contention.
The second parties, who were the trustees acting under Mr Stewart's trust-disposition and settlement...
To continue reading
Request your trial
-
Lord Hamilton's Trustees
...of the trust-estate. 1 (1902) 5 F. 146, Lord President Kinross at p. 148, Lord M'Laren at p. 149. 2 Stewart's Trustees v. StewartSC, 1931 S. C. 691, Lord President Clyde at pp. 695, 3 In re Bladon, [1912] 1 Ch. 45. 4 In re Penrhyn's Settlement, [1922] 1 Ch. 500. 5 Cf. Ersk., Inst. II. ix. 6......