Scottish Court of Session Decisions

On 31st January 1853 Mr Meiklam executed an onerous deed, whereby, in consideration of certain obligations undertaken by the other party to the deed, he bound himself, inter alia, to “settle £2000 on each of his two children, Philip Harper and Ada Harper, payable at the first term of Whitsunday after his death.” He further bound himself to be at the expense of a suitable education for the children. On the same day he executed a testamentary deed providing, inter alia, that his trustees should pay to each of his said children, Philip and Ada, “the sum of £2000, payable at the first term of Whitsunday or Martinmas after my death, on their respectively attaining majority, with legal interest until that period from the first term of Whitsunday or Martinmas after my death.” Mr Meiklam died in 1854, before either of his children attained majority.

In this action the children claimed payment from Mr Meiklam's trustees of a sum of £4000 to each, on the ground that the provisions in the two deeds were cumulative. They also claimed a sum of money for the expenses of their education.

The trustees contended that the provision by Mr Meiklam in the trust-deed was in implement of his obligation in the contract, and that the obligation for payment of expenses of education applied only to the education of the children during Mr Meiklam's life.

The Lord Ordinary ( Mure) pronounced this interlocutor:—“Finds, 1st, that according to the sound construction of the third purpose of the trust-deed executed by the late Mr Meiklam in 1853, the provision thereby settled upon the claimants, Philip Harper and Ada Harper, must be held to be the fulfilment of the obligation undertaken by the truster under the second head of the conditions of separation founded on by the claimants, and not as a legacy or provision of £2000 to each of the said claimants in addition to the sums of £2000 which the truster undertook to settle upon them by the deed of separation: Finds, 2d, that in addition to the said sums of £2000 settled upon the claimants

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by the trust-deed, they are each of them entitled, in respect of the obligation undertaken by the truster under the third head of the conditions of separation, to the expense of a suitable education from the date of the said deed of separation until they respectively attain to majority: Therefore ranks and prefers the said Philip Harper for the sum of £2000, with legal interest from the first term of Whitsunday or Martinmas after the death of the truster. But, in respect that the said Ada Harper has not yet attained majority, supersedes in the meantime the further disposal of her claim; and appoints the case to be put to the Roll, that parties may be heard as to the amount of the sum which ought to be allowed for the expense of a suitable education, and decerns: Reserving in the meantime all questions of expenses.

“ Note.—Although the wording of the provision contained in the third purpose of the trust-deed, by which £2000 is settled on each of the claimants, is somewhat different from the wording of the obligation come under by the deed of separation, that provision appears to the Lord Ordinary to be substantially a settlement of £2000 in fulfilment of the obligation. The only difference is in regard to the term of payment, which, by the trust-deed, is not to be actually made till majority, whereas, by the deed of separation it is fixed as at the first term of Whitsunday or Martinmas after the truster's death. But although payment is not, under the trust-deed, to be made till majority, there is an express provision that it is then to be made ‘with legal interest until that period from the first term of Whitsunday or Martinmas’ after the truster's death; and as this declaration as to interest appears to the Lord Ordinary to place the claimants in very much the same position, in a pecuniary point of view, as they would have been if the money had been paid on the death of the truster and invested on their account, the provision in the trust-deed must, he conceives, be dealt with as the stipulated settlement of £2000 upon each of them, and not as a separate and additional bequest.

“But the Lord Ordinary is unable to adopt the view contended for by the trustees, to the effect that this provision in the trust-deed is to be regarded as a fulfilment of the obligation in the deed of separation, to provide for the education of the claimants, as well as of that to settle £2000 upon each of them. For the declaration as to the payment of interest, which it was contended had been inserted in order to meet the necessary expenses of education during the minority of the claimants, cannot, it is thought, be so imputed; because, in the view the Lord Ordinary takes of the case, the third purpose of the trust, without that declaration as to interest, would not have been a substantial fulfilment of the obligation in the second head of the deed of separation. And as there is nothing in the wording of the third head of the condition to show that the obligation there undertaken was to be limited to the expense of education during Mr Meiklam's life, the Lord Ordinary has come to the conclusion that the claimants are entitled to have the expense of a suitable education made good to them out of the trust-estate.”

Philip and Ada Harper reclaimed.

Clark and Duncan for reclaimers.

Young and W. Ivory for respondents.

At advising—