Dewar's Trustees v. Dewar [1910] ScotLR 674 (07 June 1910)

Dewar's Trustees v. Dewar [1910] ScotLR 674 (07 June 1910)

The marriage contract's exclusion of the acts and deeds of the liferenter and the diligence of creditors imposes a legal and effectual alimentary limitation on the liferent. Therefore, the trustees cannot denude of the trust by paying over the estate as proposed, as this would contravene the alimentary nature of the provision.

Citation
[1910] ScotLR 674
Parties
First Party: Duncan Campbell Andrew and another (Trustees); Second Party: Reverend John Dewar; Third Party: Duncan Campbell Andrew and Mary Campbell Andrew
Jurisdiction
Scotland
Judgment Date
07 June 1910
Procedural Posture
Special Case (trust/succession) / Judgment of the Inner House, Court of Session
Outcome
Question answered in the negative; trustees not entitled to denude of the trust as proposed.
Legal Topics
Alimentary Liferent, Exclusion of Creditors, Trust Denuding, Marriage Contract, Liferent Rights
Trusts Succession Alimentary Liferent Exclusion of Creditors Trust Denuding Marriage Contract Liferent Rights

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Parties

Duncan Campbell Andrew and another (Trustees)

First Party

Reverend John Dewar

Second Party

Duncan Campbell Andrew and Mary Campbell Andrew

Third Party

Procedural Posture

Special Case (trust/succession) / Judgment of the Inner House, Court of Session

Legal Issues

  1. 1 Whether the liferent provision in the marriage contract is alimentary and thus protected from acts and deeds of the liferenter and diligence of creditors
  2. 2 Whether the trustees are entitled or bound to denude of the trust by paying over the estate to the liferenter and fiars as agreed

Ratio Decidendi

The marriage contract's exclusion of the acts and deeds of the liferenter and the diligence of creditors imposes a legal and effectual alimentary limitation on the liferent. Therefore, the trustees cannot denude of the trust by paying over the estate as proposed, as this would contravene the alimentary nature of the provision.

Court Disposition

Question answered in the negative; trustees not entitled to denude of the trust as proposed.

Orders

  • Trustees must retain the trust estate until the death or remarriage of the liferenter; proposed denuding not permitted.