Scottish Court of Session Decisions

But the reclaimers expressly gave up in their argument here the first point, and I think it very clear that it could not be sustained. The question comes therefore to be confined to the effect of the statutory power founded on.

The statute only gives power to assume new trustees “unless the contrary is expressed in the deed itself.” And this raises the question—Whether the contrary is expressed in the deed with which we are now dealing? The deed does not give an unqualified power of assumption of new trustees, but only power to the trustees therein named, “and survivor of them, to assume from time to time other trustees in place of such of their number as shall die or resign or become incapacitated.” I must own that for some time I was unable to resist the impression that there is here what I might fairly hold to be an expression contrary to the appointment of trustees in the circumstances which have occurred. The statute, in the words “unless the contrary is expressed, ” does not specify any precise form or words in which the contrary must be expressed. That is left quite general, and therefore it might very well be argued that the contrary might be expressed in the deed in various ways and different words, the object of the statute being that the true meaning of the deed in this respect should be left to be collected from its terms in each case as it occurred.

But then it was argued in favour of the appointment in the present case that the principle, if not the identical question, had been decided in the recent case of Maxwell's Trustees v. Maxwell, November 4, 1874, 2 Rettie 71; and after a careful consideration of that case, and in particular of the opinions of the Judges as reported in deciding it, I have ultimately come to think that that is so.

In these circumstances, I cannot withhold my concurrence—given, however, with difficulty and hesitation—in the opinion which I understand both your Lordships have formed, to the effect that the interlocutor of the Lord Ordinary reclaimed against ought to be recalled.

Lord Gifford—The sole question to be decided at present is—Whether the pursuers James Johnston and John Symons have or have not been lawfully assumed as trustees under the testamentary trust-disposition and settlement of Mrs Allan? and on the whole I have come to be of opinion that they were well assumed, and that the Lord Ordinary's interlocutor should be recalled. It is so far satisfactory to find that the Lord Ordinary would have decided in this way if he thought he could, for he tells us that he pronounced the judgment under review with regret.

The trust-deed contains a limited power of assumption somewhat peculiarly expressed—[ reads clause as above). And the question is—Whether the expression of this limited power prevents the operation of the much larger power conferred upon trustees by the first section of the Trust Act of 1861 (24 and 25 Vict. cap. 84). The provision is—[ reads as above).

Now, the question is—Whether in the trust-deed now before us “the contrary be expressed?”—that is, whether the deed expressly provides that the powers conferred by the statute shall not take effect, and I am of opinion, though not without some difficulty, that it does not. The precise point arose in the case of Maxwell's Trustees v. Maxwell, November 4, 1874, 2 Rettie 71, where the question related to a power to resign, but was otherwise precisely parallel to the present question, and it was held unanimously, to use the language of Lord Deas—“The fact that a limited power of resignation was conferred by the trust-deed could not possibly prevent the application of the subsequent enactment, which conferred an unlimited power of resignation.” Substituting the word “assumption” in place of “resignation, ” this decision is directly applicable to the present case, and I concur in the grounds and reasons of it.

For the real question is not what was the intention of the testator—not what kind of power of assumption did she intend to give—but what is the meaning of the statute? In what cases did the statute intend to confer the statutory power of assumption? Now, what is it that the statute says? It says this—Every truster shall be held to confer—shall be held by force of this statute to confer—certain powers, and among others a general and unlimited power of assumption, unless the truster provide expressly to the contrary. Implication will not do; guessing at what the intention of the truster might possibly be will not do; the conferring a special or particular power in special circumstances will not do. If the truster does not wish the statute to take effect, he must expressly say so, and nothing else will do. Every trust-deed shall be held as embodying the statute, unless the truster expressly prohibit this, for the granting of a limited power does not exclude the possession of a larger one. All trustees have power to sell the personal estate when necessary. It will not deprive them of this power that a trust-deed confers special power to sell certain specific articles.

The reason of the thing is strongly in favour of the application of the statute. Suppose two of the three original trustees had declined to accept, could the sole acceptor, who might reside in England, or perhaps abroad, not assume other trustees in their room? He could not do so under the deed, for non-accepting trustees have neither died or resigned or become incapacitated, and these are the only cases that the deed provides for; but the statute supplies the defect, and was meant to do so, and there is no provision either express or implied that an omission like this shall not be supplemented. I think therefore that the interlocutor reclaimed against should be recalled; that we should find that James Johnston and John Symons have been validly assumed; and quoad ultra remit to the Lord Ordinary to proceed in the cause.