Mackay's Trustees v. Mackay and Others [1908] ScotLR 147 (13 November 1908)

Mackay's Trustees v. Mackay and Others [1908] ScotLR 147 (13 November 1908)

The direction to accumulate surplus income for the testator's children and to pay them the income derivable therefrom was not a provision for raising portions within section 2 of the Thellusson Act; thus, the Act applied, prohibiting further accumulation after twenty-one years. As there was no present gift of the fund, the surplus income accumulated after twenty-one years fell into intestacy.

Citation
[1908] ScotLR 147
Parties
First Parties: William Reid, Viewfar, Leven, and others, trustees acting under the trust-disposition and settlement of the late David Mackay, Oak Lodge, Inveresk; Second Party: Mrs Isabell Watt or Mackay, the testator's widow; Third Parties: Mrs Davina Margaret Mackay or Reid, wife of William Reid, and others, the daughters of the testator; Fourth Parties: Archibald Douglas Reid and others, the children of the testator's daughters
Jurisdiction
Scotland
Judgment Date
13 November 1908
Procedural Posture
Special Case / Court of Session Inner House First Division, Final Judgment
Outcome
First three questions of law answered in the affirmative; surplus income accumulated after twenty-one years falls into intestacy.
Legal Topics
Accumulations, Raising Portions, Intestacy, Thellusson Act
Succession Trusts Property Law Accumulations Raising Portions Intestacy Thellusson Act

Case Brief

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Parties

William Reid, Viewfar, Leven, and others, trustees acting under the trust-disposition and settlement of the late David Mackay, Oak Lodge, Inveresk

First Parties

Mrs Isabell Watt or Mackay, the testator's widow

Second Party

Mrs Davina Margaret Mackay or Reid, wife of William Reid, and others, the daughters of the testator

Third Parties

Archibald Douglas Reid and others, the children of the testator's daughters

Fourth Parties

Procedural Posture

Special Case / Court of Session Inner House First Division, Final Judgment

Legal Issues

  1. 1 Does the Thellusson Act prohibit accumulation of income after twenty-one years from the testator's death?
  2. 2 Does the surplus income accumulated after twenty-one years fall into intestate succession?
  3. 3 Is the direction to accumulate surplus income a provision for raising portions within section 2 of the Thellusson Act?

Ratio Decidendi

The direction to accumulate surplus income for the testator's children and to pay them the income derivable therefrom was not a provision for raising portions within section 2 of the Thellusson Act; thus, the Act applied, prohibiting further accumulation after twenty-one years. As there was no present gift of the fund, the surplus income accumulated after twenty-one years fell into intestacy.

Court Disposition

First three questions of law answered in the affirmative; surplus income accumulated after twenty-one years falls into intestacy.

Orders

  • No further accumulation of surplus income after twenty-one years permitted.
  • Surplus income accumulated after twenty-one years to be distributed as intestate succession.