Scottish Court of Session Decisions

This petition was presented by J. A. Molleson, C.A., judicial factor on the trust-estate of the deceased Miss Frances Jane Hope, Wardie Lodge, Edinburgh, for authority to sell certain portions of land belonging to the trust-estate.

The petition set forth that Miss Frances Jane Hope had had the liferent of Wardie Lodge, along with certain of her sisters, under the trust-settlement of her uncle Dr Thomas Charles Hope, sometime Professor of Chemistry in the University of Edinburgh, and that while residing there, and in order to preserve the amenity thereof, she acquired certain portions of the lands of Wardie lying contiguous thereto, which at the date of the petition formed part of her trust-estate; that Dr Thomas Charles Hope's trustees had resolved to sell Wardie Lodge, and that it would be for the advantage of the trust under the petitioner's charge that the subjects lying contiguous to it, and which belonged to the said Frances Jane Hope, or part of them, should be sold along with it.

By her trust-disposition and settlement, dated 27th February 1868, and codicil thereto annexed, dated 25th January 1870, Miss Hope directed her trustees to hold and retain the residue of her means and estate for behoof of Miss Anne Jemima Hope Johnstone, daughter of John James Hope Johnstone, Esq., of Annandale, in liferent, for her alimentary liferent use allenarly, and to pay and dispone the residue of her means and estate to the youngest surviving child of her brother James Hope, writer to the signet, Edinburgh, at the time of the death of the said Anne Jemima Hope Johnstone.

The truster gave and committed to her trustees full power and authority, inter alia, to sell and dispose of her lands and heritages, either by

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public roup or private bargain, as they might think fit, and to grant dispositions, assignations, and conveyances thereof to the purchasers, containing all usual and necessary clauses.

By the Trusts (Scotland) Act, 1867 (30 and 31 Vict. cap. 97), sec. 3, it is provided that “it shall be competent to the Court of Session, on the petition of the trustees under any trust-deed, to grant authority to the trustees to do any of the following acts, on being satisfied that the same is expedient for the execution of the trust, and not inconsistent with the intention thereof; and the Court shall determine all questions of expenses in relation to such applications, and where it shall be of opinion that the expense of any such application should not be charged against the trust-estate, it shall so find in disposing of the application—(1) to sell the trust-estate, or any part of it.”… And by section 4 of the Act it is further provided that “all powers of sale conferred on trustees by the trust-deed, or by virtue of this Act, may be exercised either by public roup or private bargain, unless otherwise directed in the trust-deed or in the authority given by the Court.”…

By the Trusts (Scotland) Amendment Act, 1884, sec. 2, it is provided that in the construction of the Acts recited therein, including the foresaid Act 30 and 31 Vict. cap. 97, trustee shall include tutor, curator, and judicial factor.

The petitioner stated that he was satisfied that it was expedient and for the benefit of the trust-estate that the heritable subjects should be sold, and applied for power to sell by public or private sale.

James Hope and his youngest child Cecil Arthur Hope lodged answers. They did not oppose the sale of the lot adjoining Wardie Lodge, but they objected to the sale of the other lots, and averred that there was at the time no demand for building ground, and that to sell these portions was simply to sacrifice the interests of the fiar in order to give a small increase of income to the liferentrix, a lady of seventy-one years of age.

The Lord Ordinary remitted to Mr H. B. Dewar, W. S., who reported in favour of exposing for sale, along with Wardie Lodge, the lot adjoining that house. With regard to the remaining portions of the ground the reporter stated:—“At the date of the remit in this case, when these 4 1 2 acres were lying unoccupied and almost waste, the reporter felt much difficulty as to the practical course that he should recommend to your Lordship. The men of skill considered that they should be let at about £4 an acre to a neighbouring dairyman. They thought that if they were exposed to public sale no offer would be got for them, as there is no demand at present, nor any early prospect of a demand, for building ground in that neighbourhood. Moreover, Mr James Hope, on behalf of the fiars, with whom the reporter has had meetings on the subject, strongly objected to any endeavour to force a sale of these 4 1 2 acres of feuing-ground. Accordingly, the position was, that the interest of the liferentrix and the interest of the fiars seemed to be directly opposed to each other. On the one hand, for the liferentrix to get only £18 a year for these three pieces of ground was like sacrificing her interests. On the other hand, as there is undoubted prospective value in the ground in question as building ground, it seemed hard to sell the ground for what it would bring at a time when there seemed absolutely no demand for such ground.” The reporter recommended that a private offer of £2100 for these lots of ground should be accepted,

The Lord Ordinary ( Trayner) on 16th March 1888 granted warrant to sell in terms of the report.

The respondents reclaimed, and argued—The Court would not allow a sale unless it was “expedient for the execution of the trust”— Weir's Trustees, June 13, 1877, 4 R. 876; Downie, June 10, 1879, 6 R. 1013. Before the date of the Trusts Act, 1867, where there was a power of sale in the trust-deed, the judicial factor had to make out a case of necessity before being allowed to sell— Auld, February 5, 1856, 18 D. 487. There was no case where a sale had been ordered just because a sale was desired. Except for the interest of the liferentrix, no one would attempt to sell the property at such a time.

Argued for the petitioner—It was only necessary that a case of expediency should be made out. Were this not a lapsed trust, no application need have been made. Judicial factors were now under the Act as nearly as possible assimilated to trustees, and were clothed with more ample powers than at the time of the authorities relied on by the reclaimers. It was apparent from the report lodged that a good price had been offered.

At advising—