Scottish Court of Session Decisions

This was a petition at the instance of Mary Elizabeth Theodora Martin, daughter of Charles James Martin, East India merchant, 1 Oxford Villas, Teddington-on-Thames, and Charles James Martin as her curator and administrator-in-law, with the concurrence of the testamentary trustees of the deceased James Mackenzie of Auchenheglish, Dumbarton, in which the petitioners craved the Court “to authorise and ordain the petitioners, the trustees acting under the trust-disposition and settlement of the said James Mackenzie, of Auchenheglish, to pay to the said Mary Elizabeth Theodora Martin and her said father, as her curator and administrator-in-law, the free income of her prospective share of the trust-estate held by them, and that until she shall attain the age of twenty-one years.”

The petition stated, inter alia, as follows:—“That the said James Mackenzie of Auchenheglish died on 6th March 1873, leaving a trust-disposition and settlement by which he conveyed his whole estate in trust for the purposes therein mentioned. His trustees were thereby directed, after payment of debts, funeral charges, &c., to pay to his spouse Mrs Elizabeth Campbell or Mackenzie, in the event of her surviving him, the annual interest of the whole residue of his estate, and he directed them upon her death to hold, apply, pay, and convey the whole rest, residue, and remainder of his means and estate, and the interest and other annual produce thereof, to and for behoof of his whole lawful children, and that in the shares and proportions following, videlicet, … the shares falling to daughters in the event of their getting married before they had received payment thereof to be made over to marriage or other trustees for their behoof in liferent for their liferent use allenarly, exclusive always of the jus mariti, curatory, and right of administration of husbands, and their children equally among them per stirpes in fee; … and it was provided and declared that the interest of his grandchildren in the shares liferented by their mother as aforesaid should not vest in them until they should respectively attain the years of majority. Mrs Mackenzie enjoyed the liferent of her husband's estate until her death on 30th October 1903, when the trust estate became divisible in terms of his settlement above narrated. The said James Mackenzie was survived by two sons and by five daughters, one of them being Helen Mary Mackenzie, afterwards wife of the petitioner Charles James Martin… . The said Helen Mary Mackenzie or Martin died on 22nd June 1892 survived by one child—the petitioner Mary Elizabeth Theodora Martin, who was born on 14th June 1888. The trustees of the said James Mackenzie are in course of realising his trust-estate, so far as necessary, and distributing it. The amount of his trust-estate at the date of his widow's death was £50,335 or thereby. The share falling to the petitioner, as the only child of the said Helen Mary Mackenzie or Martin, on her attaining majority is thus, after deduction of duty, &c., £6000 or thereby; but in terms of the provision of the deed of settlement above quoted this sum does not vest in her until she attains the age of twenty-one, and the settlement does not contain any provision empowering the trustees to apply the income for her behoof. Said income is being accumulated by the trustees in the meantime. The petitioner, who is not in receipt of any income of her own, resides with her father at Teddington. Owing to political changes and troubles in the Philippine Islands, where his business has for many years been carried on, the petitioner's father has met with severe capital losses, and has found it all but impossible of late years to carry on business to profit. This has so affected his income that he cannot at present, without the addition of such a sum as the revenue of her said share would furnish, maintain and provide for the petitioner in a suitable manner, or afford to give her the educational advantages which are suitable and necessary at her age with a view to her worldly position on attaining majority. The petitioner is now in her sixteenth year. The concurring petitioners, Mr Mackenzie's trustees, are satisfied that it would be greatly for the advantage of the petitioner that the income of her prospective share

Page: 401↓

of the estate should be made available for her.”

At the hearing counsel for the petitioners referred to Trusts (Scotland) Act 1867 (30 and 31 Vict. cap. 97), sec. 7; Pattison and Others, February 19, 1870, 8 Macph. 575, 7 S.L.R. 323; Ross's Trustees, July 14, 1894, 21 R. 995, 31 S.L.R. 812; Normand's Trustees v. Normand, March 9, 1900, 2 F. 726, 37 S.L.R. 517.