Marley v Mutual Security Merchant Bank and Trust Company Ltd

 
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Supreme Court

Harrison, J.

E-152 of 1992

Marley
and
Mutual Security Merchant Bank and Trust Co. Ltd.
Appearances:

B.E. Frankson instructed by Messrs Gaynair and Fraser for plaintiff.

David Batts instructed by D. Brandon of Messrs Livingston, Alexander and Levy for defendant.

Trusts - Duties of Trustee — Defendant held lands on trust for plaintiff — Amount of US$322.18 claimed to be insufficient to meet expenses of infant plaintiff — Trustee has discretion to allow such payments — Courts will not interfere with this discretion unless the trustee exercised that discretion mala fides — US$1000.00 later sent to plaintiff — Court noted defendant had not failed to exercise its discretion nor has it done so mala fides — Sum being remitted is adequate and a valid exercise of defendant's discretion with which the court will not interfere.

Harrison, J.
1

By an Originating Summons dated 30.4.92 the plaintiff sought an order that the Court direct the defendant to:- “…pay to the plaintiff such sum or sums weekly or monthly for maintenance for Makeda Jahnesta Marley … as the Court deems fit.”

2

The infant plaintiff was born on the 30th day of May 1981. She is the daughter of the late Robert Nesta Marley, O.M. who died intestate on the 11th day of May 1981. On the 17th day of December, 1991, letters of administration were granted in the said estate. The defendant is the administrator of the estate. The administrator pays to Yvette Crichton, next friend and mother of the plaintiff a monthly amount for the maintenance of the plaintiff. This sum is paid from the interest earned from a capital sum of $500,000 allocated as a portion of the share of the plaintiff, a minor beneficiary. This amount of interest is ascertained and allocated monthly in the currency of this country, converted to the currency of the United States of America and then transmitted to the latter country where the plaintiff and her mother reside. Because of the depreciation of the Jamaican dollar compared to the United States dollar, the amounts remitted for the maintenance of the plaintiff decreased progressively in proportion.

3

Yvette Crichton complains that the remittances received are as a consequence “wholly inadequate for the proper maintenance and upbringing of the infant”.

4

For the month of February 1992 the amount remitted for the maintenance of the plaintiff after such conversion was US $322.18. Miss Crichton as a consequence issued the said summons. She referred to the fact that in addition to the allocation of the said $500,000.00, “an agreement for sale of a portion of the estate's assets was approved by the Supreme Court of Judicature of Jamaica on the 20th day of September, 1991, and it was ordered that the administrator pay by way of capital distribution to each of the infant beneficiaries the sum of US $995,000.00”. She also exhibited a statement of “monthly expenses for 1992” being, household costs “to maintain our family”, and amounts for vacation travel that may be incurred by the plaintiff.

5

Mr. Frankson for plaintiff submitted that the payments for maintenance of the plaintiff are made from the interest earned from an arbitrarily fixed sum of $500,000.00. However the administrator of the estate maintains an account in the Royal Bank of Canada in Miami, United States of America to which account the income derived principally from assets of the estate located outside Jamaica are lodged. From this account certain legal expenses are paid. He argued further that in December 1991 the Supreme Court approved a capital distribution of US $995,000.00 for each of the infant beneficiaries. The administrator has in its hands to the credit of the estate, earning interest, $11,000,000.00 in Jamaica and US$5,000,000.00 in the United States of America. He continued that the current monthly remittance for the maintenance of the plaintiff, which in February 1992 was US$322.18, was grossly inadequate. He maintained that the administrator ought to be ordered by the Court to pay the amount requested, US $1645.00 per month, from the interest earned on the sum of US $995,000.00 and that there was no necessity to resort to the capital sum of $500,000.00 for the maintenance of the plaintiff. However, the administrator may do so if it is for the benefit and welfare of the plaintiff. He concluded that the Court had an inherent jurisdiction to allow and review maintenance payments – vide Equity and the Law of Trusts by Pettit, 3rd edition, page 348(c) and Ex Parte Chambers [1829] 1 Ross and My 577, 39 English Report, p. 221.

6

Mr. Batts for the administrator/defendant submitted that under a trust, the trustee, unlike a parent in family matters, has a discretion to maintain and the Court will not intervene unless that discretion is exercised dishonestly or he failed to exercise it at all. He argued further that the defendant wisely invested some of the funds in the United States of America and it was not presently advisable or appropriate to increase the maintenance payment. The trustee's discretionary power to maintain the plaintiff arises under the provisions of the Conveyancing Act, section 44, which are “the statutory provisions which relate to maintenance and accumulation of surplus income…” referred to in section 5(1) (ii) of the Intestates' Estates and Property Charges Act. The administrator has a duty to hold and accumulate and disburse the funds when the infant is of age and the Court will not interfere unless the said administrator has acted mala fide. Vide In Re Bryant [1894] 1 Chan 324, Re Senior (1936) 3 Chan Div. 196, and also Underhill's, Law relating to Trusts and Trustees, 10th edition, p. 412. The trustee he said, has acted bona fide in the best interest of the plaintiff. The needs of the plaintiff have not been shown to be so dire, that the Court should interfere and in the circumstances the application should be refused.

7

Where the administrator of be estate of an intestate holds the estate for the benefit of the infant issue of such intestate – he holds as trustee upon the statutory trust, i.e. “upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs, and of the net rents and profits…” for the benefit of such issue – see section 6 of the Intestates' Estate and Property Charges Act.

8

The said Act is also directive as to the right of maintenance of the said infant issue.

9

Sec. 5(1)(ii) reads:- “The statutory provisions which relate to maintenance and accumulation of surplus income, shall apply…”

10

Curiously, such “statutory provisions” are contained in the Conveyancing Act

11

Section 44 of the latter Act reads:

  • “(1) Where any properly is held by trustee in trust for an infant either for life or for any greater...

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