Tait (Somervell's Trustee) v. Somervell and Others [1909] ScotLR 761 (10 June 1909)

Tait (Somervell's Trustee) v. Somervell and Others [1909] ScotLR 761 (10 June 1909)

The trustee's disentail and sale of the entailed estate were valid under the Entail (Scotland) Act 1882, s.18, without the need to make provision for all secured creditors, as this requirement does not apply to a trustee's petition. The bond of provision granted by the bankrupt after sequestration was void for lack of trustee consent under the Bankruptcy (Scotland) Act 1856, s.111. Mrs Somervell senior was entitled to rank for arrears of her annuity as a secured creditor. The scheme of ranking and division was approved, subject to reservation of the bankrupt's right to challenge expenses and interest calculations.

Citation
[1909] ScotLR 761
Parties
Petitioner: John Scott Tait (Somervell's Trustee); Respondent: James Somervell; Respondent: Agnes Marion Somervell; Respondent: Elizabeth Julia Somervell; Respondent: Mrs Amy Elizabeth Jones or Somervell; Creditor: Mrs Henrietta Jane Stirling or Somervell; Creditor: Mrs Kathleen Emilie Maclaine or Somervell, now Dawes; Creditor: James Graham Henry Somervell (next heir); Creditor: Edinburgh Life Assurance Company; Creditor: Trustees of John M'Ilwraith
Jurisdiction
Scotland
Judgment Date
10 June 1909
Procedural Posture
Petition for Approval of Scheme of Ranking and Division in Bankruptcy / Final Judgment on Objections and Approval of Scheme
Outcome
Scheme of ranking and division approved; objections repelled.
Legal Topics
Entail (scotland) Act 1882, Bankruptcy (scotland) Act 1856, Disentail by Trustee, Ranking and Division of Heritable Creditors, Bond of Provision Validity, Secured Creditors' Rights, Aberdeen Act Provisions
Bankruptcy Property Law Trusts and Estates Entail (scotland) Act 1882 Bankruptcy (scotland) Act 1856 Disentail by Trustee Ranking and Division of Heritable Creditors Bond of Provision Validity +2 more

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Parties

John Scott Tait (Somervell's Trustee)

Petitioner

James Somervell

Respondent

Agnes Marion Somervell

Respondent

Elizabeth Julia Somervell

Respondent

Mrs Amy Elizabeth Jones or Somervell

Respondent

Mrs Henrietta Jane Stirling or Somervell

Creditor

Mrs Kathleen Emilie Maclaine or Somervell, now Dawes

Creditor

James Graham Henry Somervell (next heir)

Creditor

Edinburgh Life Assurance Company

Creditor

Trustees of John M'Ilwraith

Creditor

Procedural Posture

Petition for Approval of Scheme of Ranking and Division in Bankruptcy / Final Judgment on Objections and Approval of Scheme

Legal Issues

  1. 1 Whether the trustee's disentail and sale of the entailed estate was valid without provision for all secured creditors under Entail (Scotland) Act 1882, s.18
  2. 2 Whether the bond of provision granted by the bankrupt after sequestration was valid and could rank on the estate
  3. 3 Whether arrears of annuity under the Aberdeen Act could be ranked as a secured debt on the proceeds of sale

Ratio Decidendi

The trustee's disentail and sale of the entailed estate were valid under the Entail (Scotland) Act 1882, s.18, without the need to make provision for all secured creditors, as this requirement does not apply to a trustee's petition. The bond of provision granted by the bankrupt after sequestration was void for lack of trustee consent under the Bankruptcy (Scotland) Act 1856, s.111. Mrs Somervell senior was entitled to rank for arrears of her annuity as a secured creditor. The scheme of ranking and division was approved, subject to reservation of the bankrupt's right to challenge expenses and interest calculations.

Court Disposition

Scheme of ranking and division approved; objections repelled.

Orders

  • Authorise trustee and co-signer to uplift and distribute the consigned sum (£74,808 1s 3d) per the approved scheme of ranking.
  • Direct payment to heritable creditors in specified amounts.