Imágenes de páginas

Trustees cannot divest themselves of the power.

Restriction of



liferent and his children or appointees and heirs in fee. While the money is in the trustees' hands, whether they have executed another deed or not, it is effectually protected against the diligence of creditors, even although vesting has taken place; and if the beneficiary is sequestrated the trustee for his creditors cannot touch it. The latter takes only tantum et tale as the right stood in the person of the beneficiary; and the trustees under the marriage contract can execute any deed that may be necessary notwithstanding the sequestration.1

§ 169. The vesting of a fee subject to defeasance on the occurrence of a specified event is a common artifice in conveyancing, and is recognized and approved of by the courts.2

A power such as this is one that trustees cannot divest themselves of. It does not lapse by non-exercise, and may be executed by a surviving trustee.3

170. Alimentary provisions must, however, be alimentary and no more, and the Court will, if necessary, restrict an alimentary provision to such a sum as may be deemed reasonable, and will allow the rest to be attached notwithstanding any declaration in the deed by which it is granted.*

1 Chambers v. Smith, L.R. 3 App. Ca. 795; S.C. 5 R. H.L. 151. See also Cheyne & Stuart v. Irving Smith, 26 Feb. 1889, 26 S.L.R. 391; Craig v. Ferguson and others, 3 July, 1884, 11 R. 1038.

2 Robertson and others, 20 July, 1869, 7 M. 1114; Haldane's Trustees v. Murphy, 15 Dec. 1881, 9 R. 269; commented on in Hood v. Murray, L.R. 14 App. Ca. 124. Taylor v. Gilbert's Trustees, 1878, L.R. 3 App. Ca. 1287, S.C. 5 R. H.L. 217; Fraser v. Fraser's Trustee, 27 Nov. 1883, 11 R. 196; Bradford v. Young, 19 July, 1884, 11 R.


3 See per Cranworth, L.C., in Weller v. Ker, 1866, L.R. 1 Sc. App. 14; Lewin, Law of Trusts, p. 615 (8th ed. 1885); cf. Muir v. Pollock, 9 Dec. 1851, 14 D. 152.

4 Webster v. Schaw, 7 July, 1826, 4 S. 809. See per Inglis, L.P., in Livingstone v. Livingstone, 5 Nov. 1886, 14 R. at p. 46; Stair, 3. 1. 37.

Each case is one of circumstances. In 1840, £1,800 a year was allowed to a peer;1 in 1886, an alimentary liferent of £875 a year, payable to the second son of a landed proprietor, was restricted by the Court to £500 a year.2 In giving his opinion in this case, Lord Shand adverted to the plan of barring creditors' claims to the surplus by means of a clause of forfeiture on bankruptcy, which he seemed to think would be effectual.

1 Harvey v Calder, 13 June, 1840, 2 D. 1095.

2 Livingstone v. Livingstone, supra, 14 R. at p. 43. For other examples, see Webster v. Schaw, supra; Edmonstone v. Kirkcaldy, 1622, M. 10365; Lewis v. Anstruther, 17 Dec. 1852, 15 D. 260; Bell v. Innes, 29 May, 1855, 17 D. 778; Rogerson v. Rogerson's Trustee, 6 Nov. 1885, 13 R. 154.


Transfer of a bankrupt's property to trustee in



§ 171. By the Act and Warrant of Confirmation, the whole of the estates and effects- -so far as attachable for debt1heritable and moveable, and real and personal, wherever situated, of one who has been sequestrated, under the bankruptcy statutes, is transferred and belongs to the trustee, for behoof of the creditors, and the trustee has full right and power to sue for and recover all estates, effects, debts,

1 These words, which are of much importance, are not repeated in the act and warrant, but are in the statute itself (19 and 20 Vict. c. 79, § 102). Speaking of the previous statute, Lord Deas says, "The enactment transferring the estate to the trustee 'so far as attachable for debt,' I have always looked upon as descriptive of the estate transferred, and not, as my brother Lord Curriehill seems to hold, descriptive of the consequences or effects of that transference. The bankrupt may be proprietor (so we term him) of an entailed estate, and of heir-loom moveables entailed along with it. He may be in possession (which usually presumes property) of corporeal moveables, of which he is truly only a liferenter. He may have body clothes which no creditor would be entitled to strip from his back. In short, the trustee is to take only the estate which a creditor could attach." Littlejohn v. Black, 13 Dec. 1855, 18 D. at p. 227. See also per Inglis, L. P., in Kirkland v. Kirkland's Trustee, 18 March, 1886, 13 R. 798; and Lord Westbury in Fleeming v. Howden, 1868, L.R. 1 Sc. App. 372.

and moneys belonging to the bankrupt. There is thus vested in the trustee not only all the property but all the rights of the bankrupt, accrued at the date of the sequestration, or which may accrue to him before his discharge.2



The right to revoke a deed or a gift, therefore, passes to the Revocation of trustee, and whatever the bankrupt could have revoked, the trustee is bound to revoke in the interest of the creditors.3 In addition, certain transactions are challengeable by the creditors of a bankrupt which he could not himself have challenge of challenged, and the trustee as representing the creditors transactions. is vested with all their rights. While the trustee, then, is general assignee of the bankrupt, and takes all his property and rights, he is not bound by all his deeds or obligations, but is on the contrary entitled to challenge and set them aside, if they infringe certain legal rights of the general body of creditors.


husband's creditors


$172. While the jus mariti and right of administration re- Transfer of mained entire, the wife's moveable property, including the band income of her heritage during the marriage, passed, as we under the old have seen, to the husband as dominus omnium rerum stante matrimonio.* Upon the sequestration of the husband,5 therefore, this property vested and still vests where the old law applies, in the trustee for behoof of his creditors.

1 Bankruptcy (Scotland) Act, 1856, § 102 and Schedule D.

2 See M'Donald v. M‘Grigor, 10 March, 1874, 1 R. 817.

3 See for instance Kemp v. Napier, 1 Feb. 1842, 4 D. 558.


4 See supra, § 7. The phrase occurs as early as 1579, Lenox v. Lovat, M. 5877. See also M. pp. 5802,5804, 10,366. Maxwell v. Maxwell, 1656, Decisions of the English Judges, p. 37. Peter contra

ib. p. 51.


5 On the continent a separatio bonorum was and is allowed where the husband's affairs go wrong; but this was never the rule in Scotland. See Turnbull, 1709, M. 5895.

That is, as regards moveables acquired or the rents of heritage vested prior to 18th July, 1881, and as regards moveables or the rents

Child's property never passed to

husband's creditors.

[ocr errors]

much was it the practice to look to the wife's property, for payment of the husband's debts, that a clause in a marriage contract attempting to exclude the jus mariti was regarded as a fraudulent contrivance to cut off the husband's creditors. To take away "participation of condition betwixt man and wife is the way to open a door to all fraud, so that none can contract with a married man." One of the ingenious devices resorted to in order to induce Scotsmen to turn Episcopalians was the Act 1672, c. 9, which provided that any persons married by a minister not episcopally ordained "shall amit and lose any right or interest they may have by that marriage, jure mariti vel jure relicto." This has the appearance of creating separate estate, but such was not the intention. It was held that the result was to work a forfeiture in favour of the Crown, because if the wife's estate was to belong to her, exclusive of the jus mariti, the husband's creditors might easily be cheated by his marrying irregularly, and so they would have no right to the wife's property.

§ 173. A child's property never did, and does not now, become the property of his father. If a child's money is in his father's hands mingled with his own at the date of the sequestration, it will pass to the trustee, but the same thing applies in the case of a third person. Both child and third

of heritage, acquired by the wife after that date, if she was married
prior thereto, and the husband has by irrevocable deed made a
reasonable provision for her, or the parties have not come under the
provisions of the Married Women's Property Act, by deed registered
and advertised; see Henderson v. Henderson, 25 Oct. 1889, 17 R. 18.
1 Campbell v. Sandilands, 1682, M. 5836; Gordon v. Gregory, 1658,
Decisions of the English Judges, p. 129.

21672, c. 9 (c. 20, ed. Thomson); Sir George Mackenzie's Observations, 2 Parl. Chas II. Sess. 3, Act 9.

« AnteriorContinuar »