Scottish Court of Session Decisions

The late David Ferguson, by his marriage-contract, and by a subsequent deed, assigned certain funds to trustees, declaring, inter alia, that it should be lawful for them, after the death of the survivor of himself and his wife, “to apply any part of the yearly or other income of the share or shares to which my minor or unmarried child or children of the said intended marriage shall be presumptively entitled in the trust-premises for his, her, or their maintenance and education, until such, his, her or their, share or shares shall become vested, or he, she, or they shall die, with power for the said trustees or trustee, in their or his discretion, to pay the monies so intended for maintenance and education to the guardian or guardians of the person or persons for whose maintenance and education the same is intended, for the purpose of being so applied; and the surplus income (if any) shall be invested by the said trustees or trustee, in their or his names or name, in or upon any of the funds,

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stocks, or securities hereinbefore mentioned, and be allowed to accumulate by way of compound interest, and shall go in augmentation of the share or shares producing the same, but so that the surplus income of any one or more preceding year or years; and such accumulated fund shall be applicable to any subsequent period to the maintenance and education of the child or children from whose presumptive share or shares the same arose.”

There was only one child of the marriage. Fergus David Ferguson, born in 1858. In 1860 Ferguson's wife died. In the following year he married the pursuer. In 1865 he died, leaving a small heritable property yielding about £50 per annum, and moveable property to the amount of about £8000. After Ferguson's death, his son resided with his stepmother, the pursuer. The maternal grandfather of the pupil petitioned the Court for a change of custody, but the petition was refused, with expenses. The pursuer now brought this action against Robertson, the factor loco tutoris of the pupil, appointed for the management of the heritable estate, and against the trustees, for the purpose of obtaining an allowance of £100 per annum for the maintenance and education of the pupil, so long as he continued to reside with her. The pursuer stated that hitherto the father had only paid her an allowance at the rate of £60 per annum, he alleging that the funds under his control would not afford a higher allowance, and refusing to take any steps to have the allowance increased by the trustee.

The factor, in his defence, admitted that he had only paid the pursuer the allowance of £60 per annum, together with some extra sums for medical attendance, but contended that that rate of allowance was sufficient. So far from having any funds in his hands, he was considerably in advance on the pupil's account.

The trustees alleged that—“The pursuer never made any arrangement or agreement with the present defenders regarding the board and education of the pupil, or regarding any allowance to be made therefor. The present defenders never agreed to pay the pursuer any sum whatever for the board and maintenance of the pupil, and until the present action was raised she never made any demand upon the defenders. The pursuer has not maintained the pupil under any agreement, expressed or implied, with the present defenders, that they would recompense her or pay her board. After the appointment of Mr Robertson as factor loco tutoris to the pupil, some communings took place between Mr Robertson and the present defenders, in the course of which Mr Robertson requested the present defenders to pay over to him, to be applied for behoof of the pupil, a portion of the annual revenue accruing on the funds in the defenders’ hands. This request the defenders thought reasonable; and, after full consideration of the whole circumstances, taking into account the revenue available to the defenders, the separate estate and revenue in the hands of the factor loco tutoris, and the age and position of the pupil, the defenders agreed to pay the factor £70 per annum, to be applied by the factor for the pupil's behoof. This agreement was come to in the exercise of the discretionary powers vested in the defenders by the marriage-contract, and was a fair and sound exercise of that discretion. The said sum of £70 per annum was accepted by the factor, and the agreement has been acted upon down to the present time. The payments have been regularly made quarterly in advance, from the date of Mr Ferguson's death down to the present time, the last payment by the defenders to the factor being on 30th April 1868. These payments are in full of all that the factor or any one else can claim from the defenders, until the defenders, in the exercise of their discretion, see cause to enlarge the allowance.”

The Lord Ordinary ( Jerviswoode) pronounced this interlocutor:—“Finds that the facts stated on the part of the pursuer, or which appear from those productions in process which have relation to the amount of the estate in the hands of the defenders, the trustees, under the indenture or contract of marriage referred to in summons and record, are not relevant or sufficient in point of law to support the allegations made by the pursuer, to the effect that an allowance at the rate of £100 per annum ought to be paid to her for the maintenance, clothing, and education of the pupil, Fegus David Ferguson, or are such as to warrant the interference of the Court with the exercise by the defenders, the trustees, of the discretion with which they must be held to be invested under the deed of indenture above referred to: Finds that the defenders, the trustees, are not bound to place in hands of the judicial factor, nor is the latter bound to pay to the pursuer, additional funds towards the maintenance of the pupil, as sought under the conclusions of the action; and with reference to the preceding findings, sustains the defences, dismisses the action,” &c.

The pursuer reclaimed.

Fraser and Maclean for reclaimer.

Gifford and Gebbie for trustees.

Pattison and Macdonald for factor.

At advising—