Scottish Court of Session Decisions

Robert Sutherland, farmer in Clatequoy, in the parish of Thurso and county of Caithness, died in 1880. By trust-disposition and settlement dated 18th July 1877 he disponed his whole estate, heritable and moveable, to trustees for, inter alia, payment to his wife of the whole interests, rents, and profits of his estate, heritable and moveable, for the maintenance of herself and children; payment of a legacy of 200 to the truster's daughter on her attaining twenty-one years of age, or on her marriage, whichever event should happen first; and for the division of the residue of the estate, heritable and moveable, equally between his two sons Donald William Munro Sutherland and Robert Charles Sutherland on their severally attaining the age of twenty-one, but under condition of their supporting their mother.

He directed his trustees, “as soon after my death as they conveniently can, to sell, realise, and convert into money my whole estate, heritable and moveable, excepting my household furniture and plenishing, and also excepting my heritable property in Latheronwheel and Thurso, and to invest the same to the best advantage on such securities as they may think proper;” and he further authorised his trustees, “if they think proper, to advance and pay before the arrival of the term of payment, to and for behoof of my said sons, or either of them, any part not exceeding one-half of the fee or capital of the provision made in his favour for establishing him in business.”

The truster was survived by his wife Mrs Ann Munro or Sutherland, and the following children—Donald William Munro Sutherland, Ann Christian Sutherland, and Robert Charles Sutherland, aged respectively twenty-one, nineteen, and sixteen.

At the truster's death the whole property belonging to the estate consisted of—(1) heritable property in the village of Latheronwheel, Caithness; (2) heritable property in the town of Thurso, Caithness; (3) the lease and stocking of two farms.

The trustees, being compelled by the landlord to carry on the two farms, incurred serious losses, and in order to pay off the debts so incurred found it necessary in August 1880 to raise money by bond and disposition in security over the two heritable properties.

The creditor in the bond called up the loan at Martinmas 1891, and the trustees being embarrassed by the two farms, and being unable to renew the loan, with the concurrence of the beneficiaries, presented a petition to the Court for power to sell the whole heritable estate in Latheronwheel and Thurso (although they proposed to begin with the sale of the property in Latheronwheel) as being absolutely necessary, with the view of preventing the bondholder selling the whole heritable estate under the bond and disposition in security—thus bringing ruin upon the beneficiaries under the trust—and also of enabling a division of the estate to be made according to the wishes of the truster.