Scottish Court of Session Decisions

Mr John Greasley Atherstone, a domiciled Scotsman, died in June 1895, leaving a trust-disposition and settlement whereby he instructed his trustees, inter alia, to pay the following legacies, viz.—“£1000 to my niece Elfrida Marian Billiald, and a like sum to her brother Herbert Billiald, £1500 to be equally divided between the three children of my niece Mrs Charles Whitcombe.” The first of these legatees was in minority, and the others were in pupillarity,

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and they all were domiciled in England. No appointment of tutors or curators was made to the legatees under the trust-disposition and settlement, and no provision was made for payment to their parents or guardians of the principal of the legacies, or of the income thereof, or for the accumulation of the income during the minority of the legatees.

Application was made to the trustees by the fathers of the legatees to have the income accruing on the legacies paid over to them on behalf of their children. The trustees were willing to do so, but having been advised that by the law of England the fathers could not grant a discharge for the legacies, and being in doubt as to their power to pay over the income, presented a petition to the Court of Session, with the consent of the parents, and of the first two legatees themselves, craving the Court “to authorise, direct, and appoint” the trustees to pay over to the respective parents of the legatees the income of their legacies up to such time as they should attain majority.

The Court, on 17th June 1896, remitted to Mr J. C. Couper, W.S., “to inquire and report as to the regularity of the proceedings, and the reasons for the proposed authority to pay income.”

Mr Couper reported that considering the financial position of the parents it might be to the interest of the legatees to employ the income of their bequests in their education and maintenance. He suggested, however, that as the interests of the parents and children might be antagonistic, it would be well to apply the income through a factor loco tutoris appointed to the pupils, and a curator bonis to the minor.

The petitioner argued that the Court, in exercise of its nobile officium, might authorise the trustees to make this payment to the parents, or that at any rate it might appoint a judicial factor. As he would be an officer of the Court they would practically be paying the money into Court.