Cuthbert v. Cuthbert's Trustees [1908] ScotLR 760 (12 June 1908)

Cuthbert v. Cuthbert's Trustees [1908] ScotLR 760 (12 June 1908)

The Court cannot decide in advance that a fixed deduction from an alimentary liferent will always leave a sufficient alimentary provision, nor can it determine now what is a sufficient alimentary allowance for all future years; any such judgment would not be res judicata against future creditors, and the questions are therefore incompetent for decision in this form.

Citation
[1908] ScotLR 760
Parties
First Party (liferenter/applicant): Arthur Cuthbert; Second Parties (trustees/respondents): Cuthbert's Trustees
Jurisdiction
Scotland
Judgment Date
12 June 1908
Procedural Posture
Special Case (process) / Judgment on Competency of Special Case
Outcome
case dismissed as incompetent
Legal Topics
Alimentary Liferent, Assignation of Income, Competency of Declaratory Actions, Effect of Trust Provisions, Creditor Rights
Trusts and Estates Bankruptcy and Insolvency Family Law Alimentary Liferent Assignation of Income Competency of Declaratory Actions Effect of Trust Provisions Creditor Rights

Case Brief

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Parties

Arthur Cuthbert

First Party (liferenter/applicant)

Cuthbert's Trustees

Second Parties (trustees/respondents)

Procedural Posture

Special Case (process) / Judgment on Competency of Special Case

Legal Issues

  1. 1 Whether a liferenter with an alimentary liferent can assign part of his income to pay creditors
  2. 2 Whether such assignation is valid and effectual in excess of a sufficient alimentary income
  3. 3 Whether the Court can determine in advance what constitutes a sufficient alimentary provision

Ratio Decidendi

The Court cannot decide in advance that a fixed deduction from an alimentary liferent will always leave a sufficient alimentary provision, nor can it determine now what is a sufficient alimentary allowance for all future years; any such judgment would not be res judicata against future creditors, and the questions are therefore incompetent for decision in this form.

Court Disposition

case dismissed as incompetent

Orders

  • The special case is dismissed as incompetent.