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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.2 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.2 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.

1 1 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 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 to protect

keep up trust


Continuance of trust for a limited time.

Protection by means of a fiduciary fee.

alienable. All that the trustees can do in such a case is to insert in the receipt for money or in the transfer of the property a declaration in terms of the direction, and in such terms as will, as far as may be, make it effectual.2 If, on the other hand, it is the clear intention that the trust is to be kept up, this must be done even although there is no actual direction to this effect.4 If there is no existing trust

the court cannot create one.5

§ 140. The continuance of a trust for protecting a succession may be limited to a definite period, as for instance, until the time of actual payment arrives, and a provision of capital as well as of income may be effectually made alimentary during that period. When, however, the period expires, and the trust ends, so does the protection.

§ 141. Although trustees under a contract of marriage or a testamentary deed may be bound to pay over money or to transfer property to beneficiaries, the destination may be such as in effect to constitute a continuing trust which will protect at least the corpus of the fund, although not so effectually as an ordinary trust. Thus if property, either heritable or moveable, is conveyed to a father in liferent for

1 White's Trustees v. Whyte, 1 June, 1877, 4 R. 786; Smith's Trustees v. Smith, 11 July, 1883, 11 R. 1144; Clouston's Trustees v. Bulloch, 5 July, 1889, 16 R. 937; Brown v. Brown's Trustees, 27 Feb. 1890, 17 R. 517.

2 Allan's Trustees v. Allan, 12 Dec. 1872, 11 M. 216; Per Lord Young in Mitchell's Trustees v. Smith, 7 July, 1880, 7 R. at p. 1091 ; Murray's Trustees v. Bloxsom's Trustees, 22 Dec. 1887, 15 R. 233.

3 Smith and Campbell, 30 May, 1873, 11 M. 639; Cosens v. Stevenson, 26 June, 1873, 11 M. 761; Duthie's Trustees v. Kinloch, 5 June, 1878, 5 R. 858.

4 Christie's Trustees v. Murray's Trustees, 3 July, 1889, 16 R. 913; As to this case, see Brown v. Brown's Trustees, 27 Feb. 1890, 17 R. 517. 5 Allan's Trustees v. Allan, supra.

6 Auld v. Anderson, 8 Dec. 1876, 4 R. 211.

his liferent alimentary use allenarly and his children in fee, his individual interest is that of a liferenter only, and he becomes fiduciary fiar, or trustee for his children.' He could dispose of his own liferent interest, as it is not protected, but he could not legally dispose of the capital, except as trustee and under obligation to re-invest, while the children could interdict a breach of trust. If a breach of trust is committed in such a case, and the fiduciary fiar becomes bankrupt, the children will be entitled to claim on his estate.2 It is incompetent, however, to make a parent fiduciary fiar not only for his children but for a series of liferenters.3

§142. Seeing that municipal corporations, railway, and other Indirect public companies and undertakings allow notice of a trust to

protection by notice of trust

being entered

on company

be placed upon their registers, children in cases such as the register. above have a certain amount of protection, as it is open to doubt whether with clear notice of a trust a corporation as the debtors in a bond or debenture, or a purchaser of stock, and it may be the company are not bound to see that the proceeds or price is applied in terms of the trust.

1 As regards heritage, Newlands v. Newlands' Creditors, 1794, M. 4289, affd. 1798, 4 Paton App. Ca. 43, 3 Ross, L.C. (Land Rights) 634.

As regards moveables, Gerran v. Alexander, 1781, M. 4402, 3 Ross, L.C., 659; Rollo v. Ramsay, 28 Nov. 1832, 11 S. 132 ; Gordon v. Macintosh, 8 Dec. 1841, 4 D. 192, affd. 1845, 4 Bell, App. Ca. 105; Ferguson's Trustees v. Hamilton, 13 July, 1860, 22 D. 1442, affd. 1862, 4 M'Q. 397; Massy v. Scott's Trustees, 5 Dec. 1872, 11 M. 173; per Lord Gifford in Gibson's Trustees v. Ross, 12 July, 1877, 4 R. at p. 1064; Mitchell's Trustees v. Smith, 7 July, 1880, 7 R. 1086; 1 Bell, Com. 131 (5th ed.), 126 (7th ed.).

2 Rollo v. Ramsay, 28 Nov. 1832, 11 S. 132.

3 Logan's Trustees v. Ellis, 7 Feb. 1890, 17 R. 425.

4 If it is otherwise, what is the object of inserting a receipt clause in every trust deed? Lord M'Laren is of opinion (Wills and Successions, ii. p. 342) that a purchaser is not liable for misapplication for the price

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