A testatrix directed her trustees to hold one-half of her estate for her nephew in trust until he reached the age of twenty-five, with certain discretionary powers as to payment of interest and earlier payment of part of the capital, ‘but which discretion will lie wholly with my said trustees, whom I hereby appoint to be tutors and curators to him until he attain the age of twenty-five years complete.’ The trustees were directed to hold the remaining half of the estate for behoof of the testatrix’s brother and his children nominatim. By a codicil the testatrix cancelled the provision in favour of her brother and his children. She left her brother a legacy of pounds 100, and directed that the residue should be disposed of among her relatives ‘according to their legal rights.’
In a special case for the opinion of the Court it was decided that the half of the residue mentioned in the codicil fell to be divided equally between the brother and the nephew, and was immediately payable to them. Two of the trustees declined to accept the office of tutor, but one of them accepted, and the nephew’s share of the intestate succession was paid over to him as his tutor and guardian.
In an action of accounting and for payment against the trustees by the mother of the nephew, as his natural guardian under the Guardianship of Infants Act 1886- held that as the share now payable to the nephew passed to him as intestate succession, the trustees had no power to receive or administer it, and that the pursuer was entitled thereto.
Opinion per curiam, that the appointment of the trustees as tutors and curators was a joint appointment, and that one of them could not validly accept the office, the others declining to do so.
[Sheriff of Perthshire
[1892] SLR 30 – 97
Bailii
Scotland
Updated: 27 September 2021; Ref: scu.613587 br>
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