Tait (Somervell's Trustee) v. Somervell [1907] ScotLR 44_386 (06 February 1907)

Tait (Somervell's Trustee) v. Somervell [1907] ScotLR 44_386 (06 February 1907)

The trustee in bankruptcy has an absolute statutory right to apply for disentail under section 18 of the Entail (Scotland) Act 1882, and the bankrupt's objections regarding necessity and sufficiency of other funds are irrelevant to this process; such questions are for the sequestration, not the disentail petition.

Citation
[1907] ScotLR 44_386
Parties
Petitioner: John Scott Tait (Somervell's Trustee); Respondent: James Somervell
Jurisdiction
Scotland
Judgment Date
06 February 1907
Procedural Posture
Petition for Disentail Under Entail (scotland) Act 1882 / Reclaiming Note Against Interlocutor
Outcome
interlocutor affirmed; answers repelled; petition for disentail proceeds
Legal Topics
Entail, Disentailing, Trustee Powers, Bankruptcy Procedure
Property Law Bankruptcy Law Entail Disentailing Trustee Powers Bankruptcy Procedure

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Parties

John Scott Tait (Somervell's Trustee)

Petitioner

James Somervell

Respondent

Procedural Posture

Petition for Disentail Under Entail (scotland) Act 1882 / Reclaiming Note Against Interlocutor

Legal Issues

  1. 1 Whether a trustee in bankruptcy can petition for disentail under section 18 of the Entail (Scotland) Act 1882 despite objections by the bankrupt heir
  2. 2 Whether the bankrupt heir can object to disentail on grounds of alleged sufficiency of other funds

Ratio Decidendi

The trustee in bankruptcy has an absolute statutory right to apply for disentail under section 18 of the Entail (Scotland) Act 1882, and the bankrupt's objections regarding necessity and sufficiency of other funds are irrelevant to this process; such questions are for the sequestration, not the disentail petition.

Court Disposition

interlocutor affirmed; answers repelled; petition for disentail proceeds

Orders

  • Ordains James Somervell to execute and deliver a bond and disposition in security over the estates of Sorn, Dalgain, and Daldorch in favour of James Graham Henry Somervell for £30,632 sterling, with trustee concurring.
  • Ordains trustee to deposit £7 sterling for Agnes Marion Somervell and £1 sterling for Elizabeth Julia Somervell with Bank of Scotland.