Hardie v. Brown (Macfarlan's Judicial Factor) [1911] ScotLR 382 (08 February 1911)

Hardie v. Brown (Macfarlan's Judicial Factor) [1911] ScotLR 382 (08 February 1911)

The judicial factor is entitled to retain from the pursuer's share of the trust income any amount exceeding a reasonable provision for aliment until the pursuer's debt to the trust is satisfied; the alimentary nature of the provision protects only so much as is reasonable for maintenance, not any excess.

Citation
[1911] ScotLR 382
Parties
Pursuer: Joseph Hardie; Defender: Alexander Herbert Brown (Macfarlan's Judicial Factor)
Jurisdiction
Scotland
Judgment Date
08 February 1911
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division
Outcome
Interlocutor of Lord Ordinary recalled; defender entitled to retain income exceeding reasonable aliment; cause remitted to Lord Ordinary to determine reasonable aliment.
Legal Topics
Alimentary Liferent, Trustee Powers, Retention for Debt, Reasonable Aliment, Non Assignability of Trust Income
Trusts and Estates Succession Family Law Alimentary Liferent Trustee Powers Retention for Debt Reasonable Aliment Non Assignability of Trust Income

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Parties

Joseph Hardie

Pursuer

Alexander Herbert Brown (Macfarlan's Judicial Factor)

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division

Legal Issues

  1. 1 Whether trustees/judicial factor can retain a beneficiary's alimentary liferent income to satisfy the beneficiary's debt to the trust
  2. 2 Whether retention is permissible only quoad excessum (over reasonable aliment) or for the whole income

Ratio Decidendi

The judicial factor is entitled to retain from the pursuer's share of the trust income any amount exceeding a reasonable provision for aliment until the pursuer's debt to the trust is satisfied; the alimentary nature of the provision protects only so much as is reasonable for maintenance, not any excess.

Court Disposition

Interlocutor of Lord Ordinary recalled; defender entitled to retain income exceeding reasonable aliment; cause remitted to Lord Ordinary to determine reasonable aliment.

Orders

  • Recall of Lord Ordinary's interlocutor
  • Declaration that defender may retain income exceeding reasonable aliment until debt satisfied