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only now be protected, even inter haeredes, by a valid deed under the former Act. The Rutherfurd Act likewise (sec. 47) provides that when heritable property (sec. 52) in Scotland is, by virtue of any testamentary or other trust deed dated after 1st August, 1848, in possession either directly or through trustees of a person of full age born after the date of such deed, he is not affected by any prohibitions in the deed or by any limitations regulating the succession or restricting or abridging his possession in favour of any future heir, and that he shall be deemed and taken to be the fee-simple proprietor of such property.

§ 133. Although an entail, either at common law or under the statute, preserves the corpus of the estate, and passes it intact to the next heir, it does not protect the interest of the person in possession. He is restrained from injuring the interests of the next heir, but he may do with his own as he thinks proper; and the alienation of the life interest of an heir of entail is unfortunately a transaction that is only too frequent. A liferent under a trust is in the same position. If anyone has an absolute liferent, he can do with it as he pleases. It can be attached by his creditors, and if he is sequestrated it vests in the trustee for the creditors.

Life interest of heir of entail not protected.

interest declared

§ 134. The protection that can be afforded to provisions is Beneficiary's dependent upon the restriction of the beneficiary's interest. alimentary. Instead of an absolute right, a limited right only is conferred

1062; Ferguson v. Ferguson, 18 Nov. 1852, 15 D. 19; Cathcart v. Cathcart, 31 March, 1863, 1 M. 759.

It is sufficient now that the deed contains an express clause authorizing registration in the Register of Tailzies, 31 and 32 Vict c. 101, $14.

1 Hamilton v. Hamilton, 20 Nov. 1868, 7 M. 139, aff. 8 M. (H.L.) 48 ; S.C. L.R., 2 Sc. App. 12.

Limitation of interest to a liferent.

upon him, and that limited right is again given for a special purpose, that is, for his alimentary use.



If this is properly expressed the provision is not, in so far as it is alimentary, attachable by creditors, except alimentary creditors; it does not pass to a trustee upon sequestration and cannot be assigned or anticipated by the provisee. It corresponds, to a certain extent, with the English scheme of restraint upon anticipation, but that restraint is allowed only in the case of a married woman, and will not be upheld in the case of an equitable limitation in favour of a man.3 In Scotland, on the other hand, a declaration that a fund is alimentary applies equally in the case of a man as of a woman, of a husband as well as of a wife.

§ 135. It is not enough to declare that a provision shall be deemed to be alimentary. The interest of the provisee must be in some way limited and machinery be provided for maintaining the limitation. This may be illustrated by cases under testamentary deeds. Thus, if a father directs his trustees to pay a certain sum, or a certain proportion of his estate to one of his sons, and adds that the bequest "shall be strictly alimentary and shall not be affectable by his debts, or deeds, or by the diligence of his creditors," this will not protect the

1 See Rogerson v. Rogerson's Trustee, 6 Nov. 1885, 13 R. 154; Craig v. Ferguson and others, 3 July, 1884, 11 R. 1038.

2 Rennie v. Ritchie, 1845, 4 Bell App. Ca. 221, 12 Cl. and F. 204. The restraint may be imposed not only upon the income but upon the corpus of real and personal estate. Baggett v. Meux, 1 Coll. 138, 149; Re Ellis' Trusts, L.R. 17 Eq. 409, 412, 414.

Brandon v. Robinson, 18 Ves. 429. Per Cotton, L.J., in Corbett v. Corbett, L.R. 14 P.D. at p. 11.

4 See Cosens v. Stevenson, 26 June, 1873, 11 M. 761; Craig v. Ferguson and others, supra, § 134.


fund. The trustees are bound to pay it over to the child who, as soon as it comes into his possession is free to dispose of it as he pleases. There is no restraint except a moral one, upon his spending it, or giving it away next day.' It is quite certain that you cannot give money or anything else upon the condition that it is not to be spent, or that only so much is to be spent and the rest saved. That is a repugnancy. If you make a person proprietor he must. act as proprietor. Suppose that the bequest is of so much railway stock, debentures or the like, and that the trustees insert in the transfer a declaration in the same terms as are specified in the testamentary deed, as indeed it is their duty to do,3 this will not help it. If the son chooses to sell the stock or debentures, a transferee for value will have a good title and can in no way be compelled to restore the stock or its proceeds to the son or his creditors. The intention of the testator fails because he has directed the fund to be so dealt with as to pass under the control and to be at the disposal of the beneficiary.*

an alimentary

§ 136. To constitute a valid alimentary provision it is Essentials of essential that the fund from which it is payable shall not provision. be within the order or disposition of the provisee. This can only be effectually accomplished by means of a continuing trust. If the trustees, instead of being directed to pay or

1 See for instance Mackenzie v. Mackenzie's Trustees, 10 July, 1878, 5 R. 1027, per Lord Gifford, at p. 1037; Fraser, Husband and Wife, ii. pp. 1377, 1486.

2 Per Lord Young in Christie's Trustees v. Murray's Trustees, 3 July, 1889, 16 R. 916.

3 Infra, § 139.

4 But so long as the fund remains in the trustees' hands it will be protected. Lord Shand in Kirkland v. Kirkland's Trustee, 18 March, 1886, 13 R. 807; Jamieson v. Hoile, 3 Oct. 1890, 28 S.L.R. 51.

1 Bell's Com. p. 129 (5th ed.), 124 (7th ed.). Logan's Trustees v. Ellis, 7 Feb. 1890, 17 R. 425. Per Lord Shand in White's Trustees

Protection of corpus of liferented fund.

transfer a capital sum to the provisee, are directed to pay him an alimentary annuity, or to hold a fund for his liferent alimentary use-as generally expressed for his liferent alimentary use allenarly-and the capital for his children, or for some other object, his interest is limited to a bare liferent. He has no control over the capital. He cannot assign the income, and it cannot be attached save for debts of the same character as the income itself, that is alimentary debts.'

§ 137. To protect the corpus of the fund it is necessary that the interest of the beneficiary be limited to a liferent. If he has the ultimate control of the capital he may dispose of that, or it may be attached by his creditors while his own life interest in it is preserved. Thus, if trustees are directed to hold a fund in such terms as will effectually limit the interest of the beneficiary to an alimentary liferent, but a faculty or power is conferred upon him to appoint generally to the capital by inter vivos deed, he may appoint to himself or to any third person. In other words, he can dispose of the capital as he thinks proper, burdened with his own alimentary liferent. If he becomes bankrupt, the trustee for his creditors will be entitled to the fund, subject to the liferent. This the creditors could not touch, because it is beyond the control of the beneficiary

v. Whyte, 1 June, 1877, 4 R. at p. 793; and per Lord Deas in Gibson's Trustees v. Ross, 12 July, 1877, 4 R. at p. 1054; and in Smith and Campbell, 30 May, 1873, 11 M. at p. 646.

11 Bell, Com. p. 130 (5th ed.), 126 (7th ed.).

Supra, § 134.

2 Hyslop v. Maxwell's Trustees, 11 Feb. 1834, 12 S. 413; per Lord Deas in Balderston v. Fulton, 23 Jan. 1857, 19 D. at p. 300; Ramsay v. Ramsay's Trustees, 24 Nov. 1871, 10 M. 120; per Lord Gifford in Duthie's Trustees v. Kinloch, 5 June, 1878, 5 R. 861; Lindsay's Trustees v. Lindsay, 14 Dec. 1880, 8 R. 281; Bradford v. Young. 19 July, 1884, 11 R. 1135.

himself, and nothing vests in him save the termly payments as these arise.


§ 138. Sometimes the deed under which the provision is Ambiguous granted is ambiguously expressed, and it comes to be a question of construction whether there is a direction to protect the provision or not. The alternatives are whether the trustees are to pay over the fund, or to invest it in proper securities, and transfer these, subject to a declaration in terms of the deed under which they are acting; or whether they are to continue the trust for the purpose of ensuring an effectual alimentary liferent and the protection of the capital of the fund. The point is whether the direction merely refers to the manner or terms of payment, or whether it is an instruction to protect the provision. This is purely a question of intention, and does not turn upon the nature of the fund itself, as whether it is cash or securities.2 The fact that the beneficiary is not fiar, and that there is an ulterior destination, may, however, be of importance in ascertaining the necessity for maintaining the trust, and consequently the truster's intention.3

§ 139. Unless there is a clear intention that the trust is to be kept up, this cannot be done if the beneficiary or those in his right demand payment or transfer of the fund, even although the provision is declared to be alimentary and in

1 Balderston v. Fulton, 23 Jan. 1857, 19 D. 293; Massy v. Scott's Trustees, 5 Dec. 1872, 11 M. 173; Houston or Mitchell v. Mitchell, 17 Nov. 1877, 5 R. 154. See also Keating and others, 17 June, 1870, 7 S.L.R. 548; Gibson's Trustees v. Ross, 12 July, 1877, 4 R. 1038; M‘Nish v. M'Donald's Trustees, 25 Oct. 1879, 7 R. 96.

2 In re Currey, Gibson v. Way, L.R. 32 Ch. D. 361; In re Bown, O'Halloran v. King, L.R., 27 Ch. D. 411; 1 White and Tudor, L.C. 606.

3 See Allan's Trustees v. Allan, 12 Dec. 1872, 11 M. 216; Houston or Mitchell v. Mitchell, supra.

Direction to

keep up trust

to protect


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