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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edmiston Petitioner [1871] ScotLR 8_645 (11 July 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0645.html
Cite as: [1871] SLR 8_645, [1871] ScotLR 8_645

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SCOTTISH_SLR_Court_of_Session

Page: 645↓

Court of Session Inner House Second Division.

Tuesday, July 11. 1871.

8 SLR 645

Edmiston     Petitioner.

Subject_1Trust-Settlement
Subject_2Pupil's Maintenance and Education
Subject_3Administrator-in-Law.
Facts:

In a petition at the instance of a father of three pupil children, an advance from the interest of money belonging to them authorised to be made to him as an individual for their maintenance and education, he, although in embarrassed circumstances, being stated by the trustees in charge of the money as the most proper person to have charge of the children.

Observed ( per Lord Neaves), that, as administrator-in-law, he was a creditor, and could not apply to the equitable jurisdiction of the Court by petition, but must proceed by ordinary action.

Headnote:

Mr Edmiston's three pupil children were entitled under the trust-deed of their maternal grandfather to a sum of about £22,000, yielding a free income of £880, subject to a deduction of £150, paid to Mr Edmiston under his marriage-contract. During Mrs Edmiston's lifetime this money was liferented by her, and the whole income was paid to her by her father's trustees. For some time after her death they paid to Mr Edmiston £500 a-year for his children, but latterly refused to do so without judicial authority. The children had all along resided with him. He accordingly presented this petition “for himself, and as administrator-in-law” for the children, stating that some years ago he met with reverses in business, and that the income of the children's means was necessary to enable him to maintain and educate them in the manner in which they had lived during their mother's lifetime. He therefore prayed the Court to ordain Mr Miller's trustees to make payment to him, “as administrator-in-law for his children, and for their behoof,” of the free annual income, or otherwise to ordain them to make payment to him of such portion of the free income as to the Court should seem proper for the suitable maintenance and education of the children.

The trustees lodged answers, in which they stated that they were advised that the petitioner might be held to be domiciled in England, and that, if so, they were not authorised to continue the payment without the authority of the Court. They stated at the bar that they considered the petitioner the most proper person to have the charge of his children, and to disburse any money that might be advanced for their maintenance and education.

Lancaster for petitioner.

Balfour for respondents.

At advising—

 Judgment:

Lord Benholme—I have considerable doubts as to the rights of this father as administrator-in-law. We have no sufficient evidence as to his guardianship in England, and in respect of his domicile, and that of the children, we cannot look on him as a Scotch guardian. But in our position as protectors of all minors we can surely authorise the trustees to draw on this fund for what is necessary for the children, and pay the money to him, as a proper person to have charge of the children, and a trustworthy dispenser of the money.

Lord Neaves—I am of the same opinion. I could not countenance this petition as at the instance of this father as administrator-in-law. As administrator-in-law he is a creditor, and ought to have brought an ordinary action. But he applies, not only in that capacity, but for himself, and he applies to us as a court of equity, and says, my circumstances are embarrassed, and my children cannot be supported in a manner becoming their position and prospects unless you allow them an allowance out of their money. There is no objection to him,—so far from that the trustees state that he is the proper person to educate and being up his children, and I can see no objection to giving him an allowance for their maintenance and education, as suggested.

Lord Justice-Clerk and Lord Cowan concurred.

Solicitors: Agents for Petitioner— Webster & Will, S.S.C.

Agents for Respondents— Jardine, Stodart & Frasers, W.S.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0645.html