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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Meiklam's Trustees v. Meiklam and Others [1868] ScotLR 6_2_1 (15 October 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0002_1.html
Cite as: [1868] SLR 6_2_1, [1868] ScotLR 6_2_1

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SCOTTISH_SLR_Court_of_Session

Page: 2

Court of Session First Division.

Thursday, October 15 1868.

Lord President

6 SLR 2_1

Meiklam's Trustees

v.

Meiklam and Others.

Subject_1Trust—Legacy—Cumulative Bequest—Mutual Contract—Obligation to Educate—.
Facts:

Debitor non presumitur donare. A testator executed a deed of contract in which, inter alia, he bound himself to settle a sum of £2000 on each of his two children, payable at the first term after his death, and also to provide a suitable education for them. On the same day he executed a trust-settlement directing his trustees to pay £2000 to each of the children, payable at majority, with interest from the first term after his death. Held (1) that the provision in the trust-settlement was in implement of the provision in the contract; and (2) that the children were further entitled to the expense of education until they attained majority, the obligation thereanent not being terminated by the death of the testator.

Headnote:

On 31st January 1853 Mr Meiklam executed an onerous deed, whereby, in consideration of certain obligations undertaken by the other party to the deed, he bound himself, inter alia, to “settle £2000 on each of his two children, Philip Harper and Ada Harper, payable at the first term of Whitsunday after his death.” He further bound himself to be at the expense of a suitable education for the children. On the same day he executed a testamentary deed providing, inter alia, that his trustees should pay to each of his said children, Philip and Ada, “the sum of £2000, payable at the first term of Whitsunday or Martinmas after my death, on their respectively attaining majority, with legal interest until that period from the first term of Whitsunday or Martinmas after my death.” Mr Meiklam died in 1854, before either of his children attained majority.

In this action the children claimed payment from Mr Meiklam's trustees of a sum of £4000 to each, on the ground that the provisions in the two deeds were cumulative. They also claimed a sum of money for the expenses of their education.

The trustees contended that the provision by Mr Meiklam in the trust-deed was in implement of his obligation in the contract, and that the obligation for payment of expenses of education applied only to the education of the children during Mr Meiklam's life.

The Lord Ordinary ( Mure) pronounced this interlocutor:—“Finds, 1st, that according to the sound construction of the third purpose of the trust-deed executed by the late Mr Meiklam in 1853, the provision thereby settled upon the claimants, Philip Harper and Ada Harper, must be held to be the fulfilment of the obligation undertaken by the truster under the second head of the conditions of separation founded on by the claimants, and not as a legacy or provision of £2000 to each of the said claimants in addition to the sums of £2000 which the truster undertook to settle upon them by the deed of separation: Finds, 2d, that in addition to the said sums of £2000 settled upon the claimants

Page: 3

by the trust-deed, they are each of them entitled, in respect of the obligation undertaken by the truster under the third head of the conditions of separation, to the expense of a suitable education from the date of the said deed of separation until they respectively attain to majority: Therefore ranks and prefers the said Philip Harper for the sum of £2000, with legal interest from the first term of Whitsunday or Martinmas after the death of the truster. But, in respect that the said Ada Harper has not yet attained majority, supersedes in the meantime the further disposal of her claim; and appoints the case to be put to the Roll, that parties may be heard as to the amount of the sum which ought to be allowed for the expense of a suitable education, and decerns: Reserving in the meantime all questions of expenses.

Note.—Although the wording of the provision contained in the third purpose of the trust-deed, by which £2000 is settled on each of the claimants, is somewhat different from the wording of the obligation come under by the deed of separation, that provision appears to the Lord Ordinary to be substantially a settlement of £2000 in fulfilment of the obligation. The only difference is in regard to the term of payment, which, by the trust-deed, is not to be actually made till majority, whereas, by the deed of separation it is fixed as at the first term of Whitsunday or Martinmas after the truster's death. But although payment is not, under the trust-deed, to be made till majority, there is an express provision that it is then to be made ‘with legal interest until that period from the first term of Whitsunday or Martinmas’ after the truster's death; and as this declaration as to interest appears to the Lord Ordinary to place the claimants in very much the same position, in a pecuniary point of view, as they would have been if the money had been paid on the death of the truster and invested on their account, the provision in the trust-deed must, he conceives, be dealt with as the stipulated settlement of £2000 upon each of them, and not as a separate and additional bequest.

“But the Lord Ordinary is unable to adopt the view contended for by the trustees, to the effect that this provision in the trust-deed is to be regarded as a fulfilment of the obligation in the deed of separation, to provide for the education of the claimants, as well as of that to settle £2000 upon each of them. For the declaration as to the payment of interest, which it was contended had been inserted in order to meet the necessary expenses of education during the minority of the claimants, cannot, it is thought, be so imputed; because, in the view the Lord Ordinary takes of the case, the third purpose of the trust, without that declaration as to interest, would not have been a substantial fulfilment of the obligation in the second head of the deed of separation. And as there is nothing in the wording of the third head of the condition to show that the obligation there undertaken was to be limited to the expense of education during Mr Meiklam's life, the Lord Ordinary has come to the conclusion that the claimants are entitled to have the expense of a suitable education made good to them out of the trust-estate.”

Philip and Ada Harper reclaimed.

Clark and Duncan for reclaimers.

Young and W. Ivory for respondents.

At advising—

Judgment:

Lord President—I have no doubt on either question. The contract of separation, which contains the obligation on Meiklam to settle £2000 on his son and daughter, was a present obligation, and became binding from the date of that contract. His settlement could not come into operation until after his death, and, though of the same date as the other deed, it was contemplated that it might not come into operation for some considerable time. What did he do in that revocable deed, which remained revocable and ambulatory until his death? He settled £2000 on his two children, and the question occurs, was that in performance of the obligation in the contract of separation? That obligation was not to “pay” but to “settle” a sum of £2000. But that is just an obligation to leave them £2000, and that is the very thing he does. No doubt in the deed of settlement it is provided that the £2000 shall not be paid till majority, but that does not make any practical difference between the one obligation and the other, for though the deed provides that the sums are not to be paid until majority, the testator made them bear interest from the time of his death, the effect being to make his family trustees for these children. Therefore I can hardly conceive a case in which it is so impossible to read the provision in the testamentary deed as anything but a fulfilment of the thing which stood in obligatione in the other deed. The principle founded on the maxim debitor non premmitur donare is, that where a sum is provided in an onerous deed, and the same sum is provided in a testamentary deed, the one is in fulfilment of the other. This is one of the strongest cases for applying the principle.

As to the education of the children, that is matter of express stipulation. It is contained in the third head of the contract of separation, and that is clearly over and above the obligation to settle £2000. It was not in Meiklam's power to depart from that obligation.

I am therefore for adhering to the interlocutor of the Lord Ordinary.

The other judges concurred.

Adhere.

Counsel:

Agents for Reclaimers— Horne, Horne & Lyell, W.S.

Agents for Respondents— Maclachlan, Ivory & Rodger, W.S.

1869


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