Cumming (Smart's Trustee) v. Forgan and Another (Smart's Trustees) [1911] ScotLR 42 (09 November 1911)

Cumming (Smart's Trustee) v. Forgan and Another (Smart's Trustees) [1911] ScotLR 42 (09 November 1911)

The direction to give 'liferent use and enjoyment' of the house to Janet or Jessie Smart did not make her liable for feu-duty, proprietor's taxes, fire insurance premiums, or proprietor's repairs; these burdens should have been charged upon the general residue of the testator's trust estate, and her trustees are entitled to repayment of six-sevenths of such payments with interest from the funds in the hands of the testator's trustee.

Citation
[1911] ScotLR 42
Parties
First Party (applicant): Robert Cumming, S. S. C., Edinburgh, trustee of the deceased Robert Smart; Second Parties (respondents): John Forgan, S. S. C., and another, trustees of the deceased Janet or Jessie Smart
Jurisdiction
Scotland
Judgment Date
09 November 1911
Procedural Posture
Special Case (trust/executry) / Judgment of the Inner House, First Division
Outcome
For the respondents (second parties); question 1(a) answered in the affirmative.
Legal Topics
Liferent Use and Enjoyment, Liability for Feu Duty and Taxes, Repayment of Property Burdens, Interpretation of Testamentary Provisions
Succession Trusts and Estates Liferent Use and Enjoyment Liability for Feu Duty and Taxes Repayment of Property Burdens Interpretation of Testamentary Provisions

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Parties

Robert Cumming, S. S. C., Edinburgh, trustee of the deceased Robert Smart

First Party (applicant)

John Forgan, S. S. C., and another, trustees of the deceased Janet or Jessie Smart

Second Parties (respondents)

Procedural Posture

Special Case (trust/executry) / Judgment of the Inner House, First Division

Legal Issues

  1. 1 Whether Janet or Jessie Smart was entitled to liferent use and enjoyment of the house free of feu-duty, proprietor's taxes, fire insurance premiums, and proprietor's repairs
  2. 2 Whether such annual burdens should be charged upon the general residue or the fee of the house, or borne by the liferenter herself

Ratio Decidendi

The direction to give 'liferent use and enjoyment' of the house to Janet or Jessie Smart did not make her liable for feu-duty, proprietor's taxes, fire insurance premiums, or proprietor's repairs; these burdens should have been charged upon the general residue of the testator's trust estate, and her trustees are entitled to repayment of six-sevenths of such payments with interest from the funds in the hands of the testator's trustee.

Court Disposition

For the respondents (second parties); question 1(a) answered in the affirmative.

Orders

  • The annual burdens (feu-duty, proprietor's taxes, insurance premiums, proprietor's repairs) paid by Janet or Jessie Smart are to be repaid to her trustees to the extent of six-sevenths thereof, with periodical interest, out of the funds remaining in the hands of the testator's trustee.