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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dickson and Others (Dickson's Trustees) Petitioners [1889] ScotLR 27_18 (23 February 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/27SLR0018.html
Cite as: [1889] ScotLR 27_18, [1889] SLR 27_18
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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Facts:
Lands held by testamentary trustees under a declaration that they should have no power to sell them during the lifetime of testator's children were taken by a railway company under compulsory powers, and the price consigned in bank, “subject to the control and disposition of the Court of Session, to the intent that the same shall be applied, under the authority of the said Court, to some one or more of the purposes specified in the Lands Clauses Consolidation (Scotland) Act 1845 relative to parties under disability.”
The Court, on the petition of the trustees, while the truster's children were alive, authorised the bank to pay over the consigned money to the trustees, to be invested by them in accordance with their powers under their trust-deed, without requiring them to apply it to some one or more of the purposes specified in the Act.
Peter Dickson, Isa Villa, Bridge of Allan, died on 31st January 1875, leaving a trust-disposition and settlement, under which he, inter alia, expressly declared that his trustees should not have the power during the lifetime of his children to sell any part of his heritable estate.
On 10th August 1888 the North British Railway, under compulsory powers, took a portion of the heritable property belonging to the trust, situated in the Gallowgate of Glasgow, the price thereof being fixed by valuation at £2700.
The trustees being unable, in consequence of the declaration above quoted, to give an
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effectual conveyance to the subjects sold (two of the truster's children being alive), the North British Railway Company consigned the price in the British Linen Company Bank, the consignation bearing that the sum had been consigned “subject to the control and disposition of the Court of Session, to the intent that the same shall be applied, under the authority of the said Court, to some one or more of the purposes specified in the Lands Clauses Consolidation (Scotland) Act 1845 relative to parties under disability.” The trustees being desirous of uplifting the consigned money and investing it in Glasgow Corporation stock, presented a petition, bearing to be in terms of the 67th and 79th sections of the Lands Clauses Consolidation Act of 1845, in which they prayed the Court “to grant warrant to authorise and ordain the said British Linen Company to make payment to the petitioners of the said sum of £2700, with all interest accrued thereon, and to authorise and empower the petitioners to invest the said principal sum in the purchase of stock of the Corporation of Glasgow, or otherwise as your Lordships may direct; and further, to find the said North British Railway Company liable in the expenses of this application and of carrying through the investment of the said money.”
On 8th February 1889 the Lord Ordinary (
“ Note.—In this petition, as originally presented, the petitioners, who are testamentary trustees of the late Peter Dickson, crave the authority of the Court to invest in the purchase of stock of the Corporation of Glasgow a sum of about £2700 which has been received by them as the price of part of the heritable estate belonging to the trust, which was taken compulsorily by the North British Railway Company. The said sum was consigned in the British Linen Company's Bank on 10th November 1888, ‘subject to the control and disposition of the Court of Session, to the intent that the same shall be applied, under the authority of the said Court, to some one or more of the purposes specified in the Lands Clauses Consolidation (Scotland) Act 1845 relating to parties under disability.’
The said purposes as contained in the 67th section of the Act 8 and 9 Vict. cap. 19 (the only section besides the 79th founded on by the petitioners), are as follows:—‘Such moneys shall be applied, under the authority of the Court of Session, to some one or more of the following purposes (that is to say)—In the purchase or redemption of the land tax, or the discharge of any debt or incumbrance affecting the land in respect of which such money shall have been paid, or affecting other lands settled therewith on the same heirs, or for the same trusts or purposes, or affecting succeeding heirs of entail in any such lands, whether imposed and constituted by the entailer, or in virtue of powers given by the entail, or in virtue of powers conferred by any Act of Parliament: In the purchase of other lands to be conveyed, limited, and settled upon the same heirs and the like trusts and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled; or if such moneys shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, or in removing or replacing such buildings, or substituting others in their stead, in such manner as the said Court shall direct; or in payment to any party becoming absolutely entitled to such money.’
On its being pointed out to the petitioners by the man of business to whom the petition was remitted that the section above quoted does not authorise the investment of consigned money in the purchase of stocks issued by municipal corporations, they explained that they relied upon the Trusts (Scotland) Amendment Act 1884 as extending the purposes to which such trust moneys might be applied. In particular, they referred to section 3 of that Act (47 and 48 Vict. cap. 63), which provides that ‘trustees under any trust may, unless specially prohibited by the constitution or terms of the trust, invest the trust funds ( a) in the purchase of, inter alia (sub-section 6), stocks or annuities issued by any municipal corporation in Great Britain, which annuities, or the interest or dividend upon which stock, are secured upon rates or taxes levied by such municipal corporation under the authority of any Act of Parliament.’
The petitioners have now amended their petition to the effect of founding upon the Trusts Act of 1884, and also—alternatively to the 67th section—upon section 68 of the Lands Clauses Act, which provides for the interim investment of consigned money, in the following terms—‘Sec. 68. Until the money can be so applied’—that is, in terms of sec. 67—‘it shall be retained in bank at interest, or shall be laid out and invested in the public funds or in heritable securities.’
It will be seen from the provisions of sections 67 and 68 of the Lands Clauses Act above quoted, that neither of these sections authorises the investment now desired by the petitioners, and the question now raised is whether the Trusts Act of 1884 can be read into the 67th and 68th sections of the Lands Clauses Act to the effect of extending the purposes to which consigned money may be applied under both or either of these sections. It appears to me that the Trusts Act of 1884 does not affect section
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As regards section 68, however, it may be argued with some force that the object of that clause was simply to secure the safe interim investment of consigned money in one of the ways then recognised as legal for trust funds—that the interim investments therein specified were, at the date of the Act, practically the only trust investments sanctioned, and that as the selection of trust investments has been extended by the Act of 1884, it is reasonable that the provisions of the latter Act should be held to apply to the interim investment of consigned money under the Lands Clauses Act.
As the question is one of general importance, and as I think it is probable that such applications will become numerous if this application is granted, I report the matter for the consideration and decision of the Court.”
The Court delivered no opinions, and pronounced the following interlocutor:—
“On the report by the Honourable Lord Wellwood, remit to his Lordship with instructions to grant warrant to authorise and ordain the British Linen Company Bank to make payment to the petitioners of the sum of £2700 mentioned in the petition, with all interest accrued thereon, the said sum to be invested by the petitioners in accordance with their powers under the trust-deed: And further, to find the North British Railway Company liable in the expenses of this application, and of carrying through the investment of the said money.”
Counsel for the Petitioners— D.-F. Balfour, Q.C.— A. Mitchell. Agent— F. J. Martin, W.S.