Scottish Court of Session Decisions

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Cite as: [1871] SLR 8_638, [1871] ScotLR 8_638

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SCOTTISH_SLR_Court_of_Session

Page: 638↓

Court of Session Inner House First Division.

Tuesday, July 11. 1871.

8 SLR 638

Special Case—William Jobson and Patrick Anderson (Low's Trustees) and Others.

Subject_1Process
Subject_2Special Case
Subject_3Competency
Subject_4Trustee.
Facts:

Circumstances in which it was held that it was competent for a testator to make his trustees the sole competent judges on certain special points connected with his estate, and that when he had done so neither the trustees nor any party taking benefit under the deed could come to the Court with a special case, asking the Court's opinion on these points.

Headnote:

This Special Case was brought before the Judges of the First Division by the trustees and beneficiaries under the trust-deed of Thomas Low of Mylnefield, in Forfarshire, to determine three questions—(1) Whether the sums realised from the working of a certain quarry of freestone upon the estate were to be paid by the trustees to the liferenters, or were to be retained and accumulated by the trustees for behoof of the fiars of the trust-estate. (2) Whether the sums realised by the sale of wood, being the thinnings of the plantations upon the estate on a somewhat extensive scale, should be paid to the liferenters or to be accumulated as above for behoof of the fiars. (3) In the event of the above mentioned sums being to be accumulated by the trustees, whether the interest upon them was to be paid to the liferenters or not.

In the course of the argument of counsel upon these questions, the Court called attention to the following clause in the trust-deed:—“ Eighthly, It is hereby expressly provided and declared that the said trustees shall be the sole and only competent judges ( first), of what shall form and be included in the said free residue and remainder of my said estate and effects, to be paid, assigned, and disponed as aforesaid; and ( secondly), of what shall form the said nett rents, interest, dividends, and annual profits of the said free residue and remainder to be paid and disposed of as herein-before directed; and that the judgment or opinion of the said trustees on these points, and on all other points, as to which it is herein declared that they shall be the sole and only competent judge, shall be final and binding, and obligatory upon all parties concerned or interested under these presents.”

The case was continued for argument on the, question, Whether, in view of this clause, it was competent for the parties to come into Court at all on these matters?

Adam and A. J. Young for the trustees.

Solicitor-General ( Clark) and Jamieson for the beneficiaries.

At advising—

Judgment:

Lord President—The question before us is, whether we should refuse to consider this special case? And before we determine to do so, we must satisfy ourselves that it was the intention of the testator here to prevent any such legal proceeding being taken by his trustees or the beneficiaries. As to the competency of a testator making such a provision, I really cannot entertain much doubt. If a testator were to lay down in his will that there was to be no litigation about his succession whatever, I should have great doubt about the validity of such a provision. But where a testator merely provides that there shall be no going to law upon certain special points, and arranges so clearly for their determination as here, the case is very different, and the provisions must receive effect. I think we may fairly draw an analogy in the matter before us from the 10th section of the trust-deed, which provides that the trustees shall be the sole competent judges in matters connected with the expenses of management of the trust property. Now, can there be the slighest doubt that this clause precludes any person taking benefit under the deed from raising any question in an accounting or otherwise, with respect to such expenditure by the trustees. Now, what is the difference between that class of questions and the ones we have proposed for our decision. These latter questions seem to me just to arise in the course of the administration of the trust. The deed provides that the trustees shall be the sole competent judges of the two questions—1st, What shall be included in the free remainder and residue of the estate to be ultimately paid to certain persons as fiars? And 2d, What shall form the nett annual revenue of the said free residue to be paid in liferent to certain other persons, beneficiaries under the trust? Now, I think that was just as competent a provision on the part of the testator as the one before alluded to. Questions arising between liferenter and fiar are generally questions of detail, better solved by ordinary sound headed men of business than by courts of law. The testator intended that this should be the case here, and that his trustees should not be bound by strict rule of law in the determination of these questions, but should judge, in the exercise of their own discretion as boni viri, what was the fair proportion of these sums to

Page: 639↓

place to capital, and what to income. I should be very sorry to interfere with such a reasonable intention of the testator, so well expressed. I am therefore of opinion that this Special Case should be refused.

The other Judges concurred.

Solicitors: Agents for the Trustees— Pearson & Robertson, W.S.

Agent for the Beneficiaries— M'Ewen & Carment, W.S.

1871