Scottish Court of Session Decisions

William Prince Munro died at Edinburgh on 8th June 1885, survived by his widow. No children were born of the marriage. By an antenuptial contract of marriage which was entered into between him and his wife, Ann Gray or Munro, on 30th October 1860, he provided that in the event, which happened, of no children being born of the marriage, his estate was, at the death or second marriage of his wife, who was

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to enjoy the annual income, to descend to his next-of-kin or to such other party to whom he might bequeath the same, and that his trustees should be bound to reconvey his said estates accordingly. The marriage-contract contained the following provision for the appointment and assumption of new trustees, viz.—“And in the case of the death or resignation or legal incapacity of the said trustees, it shall be competent to the said William Munro and Ann Gray, by any joint-deed, or to the survivor of them, to nominate and appoint new trustees in the place of those dying, resigning, or becoming incapacitated;” it also gave “power to the trustees before named and appointed, after the death of the survivor of the said William Prince Munro and Ann Gray, to assume other trustees in the place of such of their number as shall die or resign or become incapacitated, who shall have the same powers as the original trustees.”

Of the five original trustees appointed by the deed one predeceased Munro, and another resigned before Munro died. In December 1885 the remaining trustees were requested by the widow to assume George Young and James Flett as trustees, and they did so by deed of assumption dated 11th February 1886, assuming also by the same deed at the same time John Thomson and John Munro to act as trustees. John Munro was the eldest nephew of the late Mr Munro, and he and Thomson were assumed with a view to the early resignation of two of the original trustees, and also to preserve the interests of the fiars. The assumption bore to be made in respect of the request of Mrs Munro as to Young and Flett, and also in respect of the powers conferred by the Trusts (Scotland) Act 1861 (24 and 25 Vict. cap. 84), which provides, sec. 1—“All trusts constituted by virtue of any deed or local Act of Parliament, under which gratuitous trustees are nominated, shall be held to include the following provisions, unless the contrary be expressed; that is to say, power to any trustee so nominated to resign the office of trustee; power to such trustee, if there be only one, or to the trustees so nominated, or a quorum of them, to assume new trustees.”…

Mrs Munro and the trustees who had been nominated by her, viz., Young and Flett, objected to the assumption of Thomson and John Munro without Mrs Munro's consent, on the ground that the terms of the antenuptial contract of marriage precluded the trustees availing themselves of the statutory power of assumption. The trustees on the other hand, and Thomson and John Munro, maintained that on a sound construction of the marriage-contract (which being dated in 1860 was before the Trusts Act 1861) the assumption of Thompson and John Munro, in virtue of the powers conferred by it, was good.

This Special Case was accordingly presented to settle the question. The surviving original trustees along with Thomson and John Munro were first parties. Mrs Munro, Young, and Flett were second parties.

The question submitted to the Court was as follows:—“Do the terms of the said antenuptial contract of marriage exclude the statutory power of assumption vested in gratuitous trustees, so as to invalidate the assumption of the said Messrs John Thomson and John Munro?”

Argued for the first parties—The deed of assumption was within the powers which the Trusts Act of 1861 conferred on gratuitous trustees. It was true that in the antenuptial contract of marriage there was power given to the trustees of that deed to assume others after the death of the survivor of the spouses, but that limitation could not finally prevent the application of the subsequent enactment which conferred an unlimited power of assumption. Supposing Mrs Munro became insane, there was no provision for assumption unless resort was made to the statute. Was “the contrary expressed” (as ran the statute) in the marriage-contract? It was not; and in testing this it must be borne in mind that implication and guessing at the truster's intention would not do, and unless the truster in clear and express words prohibited it the deed must not be held as excluding the statute, for the granting of a limited power would not exclude the possession of a larger one. The statute proceeded on views of general policy and expediency and gave gratuitous trustees such powers as it was in general desirable they should possess. The case was ruled by the cases of Allan's Trustees v. Hairstens, January 23, 1878, 5 R. 576, and Maxwell's Trustees v. Maxwell, November 4, 1874, 2 R. 71. In Thomson v. Miller's Trustees, December 22, 1883, 11 R. 401, the point raised was of a different kind. Though there were no express words of prohibition, there was in the opinion of the Judges the exact equivalent of them.

The second parties replied—The scope of the statute was to supplement the otherwise imperfect powers of trustees—to meet in fact a casus improvisus in the deed under which they acted. Was there any such here? There was here a perfectly clear and unambiguous scheme for the administration of the trust which admitted of and required no addition from the statute. The marriage-contract had carefully provided that no assumption of trustees was to be made during the widow's lifetime without her consent. That then being the true meaning of the deed and the expressed intention of the trust, the statute did not operate in a contrary direction. In the construction of such a clause as “after the death of A or his survivor” it was always held as equivalent to “ only after the death of A,” &c. A privilege to keep up the trust was given to the widow— Chorlton v. Laings, November 9, 1868, L.R., 4 C.P. 374.

At advising—