Scottish Court of Session Decisions

This was an action of multiplepoinding brought by William Auld, C.A., Glasgow, as judicial factor on the trust-estate of Mrs Agnes Ballantyne or Mabon, wife of David Mabon, sometime weaver in Glasgow. The claimants were children and representatives of children of the marriage.

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In Mrs Mabon's trust-settlement, dated 31st August 1832, she, with the consent of her husband, conveyed to certain persons named, “as trustees for the ends, uses, and purposes after mentioned, All and sundry lands and heritages, of whatever kind or denomination, as also my whole moveable or personal means and estate,” .... with full power to my said trustees to sell and dispose of the subjects above conveyed as they may think proper, and convert the same into cash, or to borrow money on the security of the said subjects, or to apportion and divide the same among my children after named, as they may think proper or be advised.” The first purpose of the trust was for payment of debts, &c.; the second made provision for her husband; and the third for her eldest son. The fourth purpose was as follows:—“I hereby, with consent aforesaid, direct and appoint my said trustees or trustee to hold the whole residue and remainder of my said whole subjects and estate in trust for my children, David Mabon, John Mabon, Thomas Mabon, William Mabon, Agnes Mabon, and Charles Mabon, equally, and in case of any of my said children dying before majority or marriage, then the share of such child or children predeceasing shall accrue to the survivors equally, share and share alike; declaring always, as it is hereby expressly provided and declared, that the said several provisions shall be strictly alimentary, and shall not be assignable or liable to be attached in any way by any of the creditors of my said husband and children respectively.”

The truster died in 1837, but her trust-disposition, though registered upon 24th July 1845, was lost sight of till 1871. Meantime, in 1861, Mr Thomas Neilson, house factor in Glasgow, had been appointed by the Court judicial factor upon the estate, and had administered it until the recovery of the lost deed, when his appointment was recalled, but on the failure of trustees to accept he was reappointed. He died in 1874, and Mr Auld was then appointed factor. The estate committed to Mr Auld's hands consisted of (1) a sum of £4739, 6s. 9d., the surrogatum of certain heritable subjects near Dry gate Street, Glasgow, which had formed part of the trust-estate, but had, under statutory powers of compulsory purchase, been acquired by the trustees under the “Glasgow Improvements Act 1866;” and (2) of £2395, 14s. 1d., the surrogatum for certain other heritable subjects which had originally formed the remaining part of the trust-estate, but had, under statutory powers of compulsory purchase, been acquired by the Prison Board of the Northern District of the county of Lanark. Both these sums were paid in August 1874. There were certain debts affecting them, which it is unnecessary to specify. The testatrix was survived by seven children, including the eldest, for whom special provision had been made, but three only—Charles, Thomas, and William—survived at the date of the action, and each claimed one-sixth of the estate. The daughter of another, who died in 1856, claimed a fourth one-sixth. The children of another, named John, viz., James Mabon, Mrs Agnes Mabon or Anderson, and William Mabon, claimed another sixth between them, or, in the event of the succession being heritable, James Mabon claimed the whole. The sixth child, named Agnes, married, and died in 1850, leaving several children, who claimed the remainder between them, or, if the succession were found to be heritable, one of them, Dr Cowie, claimed the whole.

The judicial factor claimed to retain three sixth shares of the estate for Charles, Thomas, and William, paying to them their annual income as an alimentary provision, in terms of the trust-disposition.

The Lord Ordinary pronounced an interlocutor, in which, after certain findings as matter of fact, he found “as matters of law—(1) that the taking by the public bodies above specified was not a sale and disposal of the trust-estate, and conversion of the same into cash, in the exercise of the powers conferred upon the trustees, and that the character of the truster's succession as heritable or moveable must be determined as it would have been if the trust-estate had still consisted of the heritages left by the truster: and (2) that the other facts being as above set forth, the trust-estate must be regarded and dealt with as heritable and not as moveable succession. In the second place, and as regards the right of the truster's children, among whom the residue and remainder of the trust-estate was to be apportioned and divided, or for whom it was to be held by the trustees—Finds that, according to the sound interpretation of the trust-deed, each of these beneficiaries on attaining majority or being married acquired a vested right in his or her share, and was entitled to delivery thereof, free from any burden or condition by which the free use or disposal of the same would or might be affected, so soon thereafter as in the circumstances of the trust this could be conveniently accomplished. In the third place, appoints the cause to be enrolled,” &c.

Mrs Anderson and William Mabon reclaimed, and argued—Under the clause in the deed there was constructive conversion. There could be no apportionment of the estate which was not also a division. To give pro indiviso shares would not fulfil the direction to apportion and divide. There was therefore an order or direction to convert. It was here indispensable to sell according to the truster's view. A compulsory sale did not take away the discretion of the trustees. It forced upon them the consideration of the mode of dividing the estate. If the fund was not thereby to be made moveable, it should be reinvested in heritable property.

Authorities— Buchanan v. Angus, March 13, 1860, 22 D. 979, H. of L. 4 Macq. 374; Weir v. Lord Advocate, June 22, 1865, 3 Macph. 1006; Fotheringham's Trs. v. Paterson, July 2, 1873, 11 Macph. 848; Boag v. Walkinshaw, June 27, 1872, 10 Macph. 872; Lord Advocate v. Blackburn's Trs., Nov. 27, 1847, 10 D. 166.

Argued for Charles Mabon—There was no conversion if there was merely an option or discretion in the trustees. To make conversion there must be an absolute and unconditional trust for sale. The clause here presented an alternative on the face of it. There was no other provision in the deed which conflicted with that reading. The Court had held that an estate consisting of heritable bonds must be sold to be divided. But this estate was different. The words “as they may think proper” gave a discretion to the trustees

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to distribute equitably in any case; compulsory conversion did not alter the truster's intention.

Argued for the judicial factor — The truster had directed him to hold, and he was thereby prevented from paying over.

Authorities— Lady Massy v. Cunninghame, Dec. 5, 1872, 11 Macph. 173: Gardner v. Ogilvie, Nov. 25, 1857, 20 D. 105; Allan v. Allan's Trs., Dec. 12, 1872, 11 Macph. 216; Heron v. Espie, June 3, 1856, 18 D. 917.

At advising—