Scottish Court of Session Decisions

Mrs Mary Stewart Mackenzie Beatson or Mackinnon, widow of Campbell Mackinnon, M.D., C.B., Inspector-General of Hospitals, died at Campbeltown on the 13th day of February 1884, leaving a trust-disposition and settlement, dated the 26th day of February 1883, and registered in the books of Council and Session the 19th day of May 1884. She was survived by one son, John Campbell Mackinnon, who was born on the 29th day of August 1866.

By the said trust-disposition and settlement the said Mrs Mary Stewart Beatson or Mackinnon gave, granted, assigned, and disponed to and in favour of Surgeon-General John Fullarton Beatson, her brother, and certain other persons, all her estate, heritable and moveable, real and personal, at the time of her death, in trust always for the uses, ends, and purposes, and under the conditions, declarations, and provisions thereinafter expressed. She directed her trustees by the third purpose of the said trust-disposition and settlement to “hold, retain, and invest in their own names the residue and remainder of my said means and estate until my son John Campbell Mackinnon attains the age of twenty-five years complete, at which time they shall, subject to what is hereinafter contained, pay and make over to him the said residue and remainder, together with any interest or other produce that may have accrued thereon: Declaring that my trustees shall be entitled, so long as they think it expedient to do so, to retain the said residue and remainder in their own hands, excepting my silver plate, jewellery, napery, pictures, and books, as after mentioned, and that even after the said John Campbell Mackinnon shall have attained said age, and only pay him the annual produce or income thereof, it being understood that should they so retain it after he attains twenty-five years, and should he die without said residue and remainder, and others, having been paid to him, then

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the same shall be paid to his nearest heirs and representatives whomsover, my intention being that the same should vest in him at said age of twenty-five, and I authorise my trustees to apply the annual produce or income of said residue and remainder, or such portion thereof as they may think proper, for behoof of my said son until he attains said age of twenty-five, and also to advance to him, or for his behoof, the whole or such portion of the capital as they may think proper, should circumstances arise which in their sole discretion render it expedient for them to do.”

The said John Campbell Mackinnon became twenty-one years of age on the 29th day of August 1887, and became then entitled under his father's settlement to the residue of his father's estate, amounting to over £8000. This sum was paid to him at that date. He then went to reside in London, and having spent the whole of the said sum of £8000, and having in addition incurred heavy debts, a receiving order in bankruptcy was on the 19th day of October 1889 made by the High Court of Justice, London, against him, by which order the Chief Official Receiver of the High Court was constituted receiver of his estate. This receiving order was intimated to Mr Mackinnon's trustees on or about 20th January 1890.

After John Campbell Mackinnon had attained the age of twenty-five, which he did upon 29th August 1891, the official receiver claimed that he was entitled to receive payment from the trustees of the residue and remainder of the trust-estate, which amounted to about £2000 as at that date, together with the revenue or income of the said residue and remainder accruing from and after that date.

The trustees, on the other hand, who continued to hold the capital maintained that by the trust-disposition and settlement they were armed with a discretionary power to retain the residue and remainder of the trust-estate, except the silver plate and other articles therein referred to, after 29th August 1891, although vested in the truster's son, and to pay the income arising therefrom to him for his maintenance.

A special case was therefore presented to the First Division of the Court of Session, by Mr Mackinnon's trustees of the first part, and by the Official Receiver in Bankruptcy in the High Court of Justice in England of the second part, to have the following questions of law determined—“(1) Are the first parties entitled to retain the remainder and residue of the said trust-estate (except the said silver plate and other articles before referred to) in their own hands, since the said John Campbell Mackinnon attained twenty-five years of age on 29th August 1891, and to apply the income thereof for the said John Campbell Mackinnon's maintenance? Or (2) is the second party, as trustee on the bankrupt estate of the said John Campbell Mackinnon, entitled to claim as from the said date of 29th August 1891 the remainder and residue of the said trust-estate, and to receive and be

paid the same, together with the income or revenue thereof from said 29th August 1891?”

Argued for the first parties—They were entitled, and in the interests of the beneficiary here were bound, to exercise the power conferred upon them of continuing to hold the capital in their own hands. Although the word “alimentary” was not used, the provision of the deed was valueless if it did not secure an alimentary provision for the truster's son. The question was, could the son himself have demanded payment of the capital? Clearly he could not. The official receiver, although in his place, could only take up his right tantum et tale as it stood in him. The case of Chambers' Trustees v. Smiths, April 15, 1878, 5 R. (H.L.) 151, was exactly in point. [ Lord Kinnear—In that case the trustees had power to keep the fee away altogether from the child, and give it to that child's issue; here the fee could not be defeated, and had vested absolutely.]— cf. also Christie's Trustees v. Murray's Trustees, July 3, 1889, 16 R. 913; and Campbell's Trustees v. Campbell, July 17, 1889, 16 R. 1007.

Counsel for the second party were not called upon to reply.

At advising—