Douglas Gardiner & Mill v. Mackintosh's Trustees [1915] ScotLR 109 (16 November 1915)
The wife's liferent interest under the marriage contract trust was not protected from creditors because it was not expressly alimentary and remained assignable by her; thus, exclusion of creditors was ineffective.
- Citation
- [1915] ScotLR 109
- Parties
- Pursuers: Douglas Gardiner & Mill; Defenders: Mackintosh's Trustees
- Jurisdiction
- Scotland
- Judgment Date
- 16 November 1915
- Procedural Posture
- Action of Furthcoming / Reclaiming Motion (appeal) From Lord Ordinary's Decree
- Outcome
- Appeal dismissed; decree of furthcoming adhered to.
- Legal Topics
- Alimentary Provisions, Marriage Contract Trusts, Assignability of Liferent, Protection From Creditors, Arrestment and Furthcoming
Case Brief
Summary, issues, holding and outcome
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Parties
Douglas Gardiner & Mill
Pursuers
Mackintosh's Trustees
Defenders
Procedural Posture
Action of Furthcoming / Reclaiming Motion (appeal) From Lord Ordinary's Decree
Legal Issues
- 1 Whether a liferent interest under a marriage contract trust, not expressly declared to be alimentary and assignable by the beneficiary, is protected from the diligence of creditors.
Ratio Decidendi
The wife's liferent interest under the marriage contract trust was not protected from creditors because it was not expressly alimentary and remained assignable by her; thus, exclusion of creditors was ineffective.
Court Disposition
Appeal dismissed; decree of furthcoming adhered to.
Orders
- Decree of furthcoming granted in favour of the pursuers; defenders' pleas repelled; defenders to pay expenses.
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