Scottish Court of Session Decisions

This was a petition by Mr G. A. Jamieson, C.A., judicial factor on the trust-estate of the late Robert Barclay Allardice, of Ury and Allardice, for special powers. The most important object of the application was to obtain authority from the Court to expose to sale by public roup the estate of Allardice at an upset price of £41,500 and also certain subjects in Stonehaven at £1300.

The late Robert Barclay Allardice, of Ury, died in 1854, survived by a daughter, Mrs Margaret Barclay Allardice or Ritchie, and by three grandsons, sons of Mr Ritchie. He also left two natural sons, Robert and David. Mr Barclay Allardice left a trust-disposition and settlement, dated February 1851, by which he conveyed his whole estate, heritable and moveable, to trustees. The first purpose of the trust is for payment of debts; the second for payment of £3000 to his son David; the third for payment of an annuity of £100 to Ann Angus, the mother of his natural sons, and of an annuity of £200 to his daughter, Mrs Ritchie; the fourth for payment of £1000 to each of his three grandsons. In the fifth place, the truster directs his trustees to make over the residue of his estate, heritable and moveable, to his eldest natural son Robert, adding, “And I leave and bequeath the same to him accordingly, with full power to my said trustees to apply the annual rents, or interests of the foregoing bequests, to my said two sons in alimenting and educating them during their minority, and, if found advisable, to apply the principal sums, in whole or in part, in purchasing commissions for them in the army or navy, or otherwise settling them in life; and declaring that, subject to the exercise of these powers, the bequest in favour of my said son Robert shall not take effect until he shall attain the age of thirty years complete, unless my said trustees shall be of opinion that it should take effect sooner.” Power was given by the trust-deed to the trustees to sell the heritable estate, though the truster stated it to be his earnest wish and desire that they “shall, if possible. and if considered by them to be expedient in the circumstances of the trust, make over my landed property, in whole or in part, after making provision for the payment of my debts, bequests, and others before-mentioned, to my eldest son Robert, by the said Ann Angus, on his arriving at the age of thirty years, or earlier if deemed expedient.”

In 1871 Mr Jamieson was appointed judicial factor on the trust-estate, and in February 1872 he presented the present petition, with concurrence of Lieutenant Robert Allardice, the beneficiary under the trust.

The following is taken from the report by Mr Alexander Hamilton, W.S., to whom the Lord Ordinary ( Mackenzie) remitted to inquire into the circumstances set forth in the petition:—

“The petitioner sets forth that, at the death of the said deceased Robert Barclay Allardice, his estates were heavily burdened with debt, and his affairs were in great confusion and embarrassment. His trustees sold the estate of Ury by public roup; but they retained the estate of Allardice, conceiving that it would increase in value, and that the rental would be sufficient to meet the interest of debts and annuities, as well as maintain the truster's son, Lieutenant Allardice, for whose benefit the trustees were desirous of preserving the estate, in conformity with the earnest wish and desire of his father.

The anticipations of the trustees have not been realised, for the interest of the debts, the annuities to Mrs Ritchie, now Mrs Barclay Allardice, and Mrs Ann Angus or Macdonald, the public burdens, and expenses of management, more than swallow up the rental, so that, instead of there being any surplus for the maintenance of the truster's son, there is a deficiency.

There is embodied in the petition a state of the rental and expenditure, bringing out a deficiency of	£8	1	8
exclusive of the interest of £1500, borrowed by Lieutenant Allardice on his reversionary interest, at 5 per cent,	75	0	0
which makes an annual deficiency of	£83	1	8

The petitioner has had the estate valued by Mr James F. Beattie, land-surveyor, Aberdeen, and he recommends that if the property is exposed for sale the upset price should be £41,500. The

Page: 483↓

subjects in Stonehaven, which are also proposed to be sold, have been valued by Mr George Murray, licensed valuator, Stonehaven, at £1313. The trust-deed grants power to sell or dispose of all or any part of the trust-estate and effects.

The petitioner asks authority to expose the estate of Allardice at the upset price of	£41,500
and the Stonehaven subjects at	1,300
	£42,800

which sums the petitioner has been advised he may expect to realise.

The debts affecting the said estate and the Stonehaven subjects amount to	£25,700
which would leave a balance of	£17,100
But from this would have to be deducted the sum borrowed by Lieutenant Allardice, and secured upon his reversionary interest in the estate,	1,500
leaving a residue of	£15,600

If that residue of £15,600 were invested at 4 per cent. it would yield	£624
out of which the following annuities would require to be paid:— 1. To Mrs Barclay Allardice, £200 2. To Mrs Ann Angus or Macdonald, 100	300
leaving a surplus income of	£324

in place of a deficiency of £83, 1s. 8d., as at present existing.

Sale of Stonehaven Subjects.—The remarks on the above branch apply also to this part of the petition, and if your Lordship grants authority to sell the estate of Allardice, it seems expedient that these subjects ought also to be sold.

The expediency of the sale of the estate of Allardice and the Stonehaven subjects, being now the whole remaining portions of the trust-estate under the petitioner's management as judicial factor, has been established. Lieutenant Allardice, the sole beneficiary, and in whom the residue of the estate is vested, not only concurs in the petition, but “is desirous that the estate should be sold without delay.” On 22d May 1873 he will attain the age of thirty, when, by the terms of the trust-deed, the estate would fall to be made over to him. No other person has any interest to object. The annuities are not a burden upon the estate, and the judicial factor, before parting with the price, will require to provide for the payment of the annuities. The petition has been served upon the annuitants, and they have not appeared, though it is right to mention that Mrs Ann Angus or Macdonald, being in America, will not probably be aware of the proceedings.

On the whole, it appears to the reporter, after examining the application, and whole proceedings and productions, and made such inquiries as he considered necessary, that the facts and circumstances stated in the petition are correctly set forth, and that it is proper and expedient that the special powers prayed for should be granted.”

The Lord Ordinary, by interlocutor dated 20th March 1872, refused in hoc statu to grant authority to sell.

His Lordship considered that the small deficiency of income to meet the expenditure was not per se a sufficient ground to warrant the application; that it was by no means certain that an interest in the residue had vested in Lieutenant Robert Allardice; and that there was the less reason for granting the power, as the latter would attain the age of thirty on 22d May 1873, when, if he survived, the residue would certainly vest in him.

The judicial factor reclaimed.

Solicitor-General and Watson for him.

Mrs Barclay Allardice or Ritchie, on whom the petition had been served, but who had not appeared in the Outer House, put in a minute, craving to be heard by counsel in support of the Lord Ordinary's interlocutor.

Balfour, for her, maintained that the petition should be refused; because (1) the truster had expressed an earnest wish that the estate should not be sold; (2) no case of necessity had been made out; (3) it was by no means clear that the residue had vested in Robert Allardice before he attained the age of thirty; and that Mrs Ritchie had therefore an interest in opposing the sale as heir-at-law of the truster.

Reference was made to the case of Allardice's Trustees v. Ritchie and Others, 16th March 1866, 1 Scot. Law Rep., 224, which involved the construction of the fourth purpose of the trust-deed of 1851, and in which the Judges of the Second Division incidentally expressed their opinion that the residue had vested in Robert a morte testatoris.

At advising—