Scottish Court of Session Decisions

Alexander Sim died at Aberdeen on 28th May 1885, leaving a trust-disposition and settlement dated 12th February 1883, whereby he conveyed his whole estate, heritable and moveable, to trustees. After providing for the payment of debts and certain legacies, the testator appointed whatever residue there might be or his said means and estate after satisfying the foregoing purposes to be invested in name of the trustees, and he directed them, out of the annual income or profits thereof, to pay his widow an annuity of £250 (such annuity to cease on her death or re-mariage), and to pay and apply the balance of the income and profits for the maintenance and education of his children, in such manner and in such sums as they should think fit, with special power to the trustees “notwithstanding the period of vesting of my children's interest in my estates as after mentioned, to pay or apply a portion of the capital or principal of my said estates for behoof of any one or all of my said children during their respective minority, or to pay or apply same for behoof foresaid prior to the final division of my estates as after mentioned, should such payment or application seem to my trustees to be for the interest and benefit of any one or all of my said children, and such payment or advance shall be deducted from the share falling to the child who has obtained same upon the final division of my estates : ( Lastly) Upon the youngest of my children reaching majority (which time is hereby declared to be the period of vesting of my said children's interest in my said estates), my trustees shall set apart a sum sufficient to meet the annual payment as aforesaid to my said spouse, should she be alive and unmarried at that date, and shall then divide the remaining portion of the residue of my estates equally among my said children, share and share alike, deducting from each such child's share any advance which may have been made to account of the capital as hereinbefore provided for, and should any of my said children have predeceased the term of division herein named leaving lawful issue, such issue shall succeed to the share to which their parents would have been entitled, but in the event of no such issue, then the share of such predeceased child shall form part of the residue of my estate, and upon the death or marriage of my said spouse the sum set apart as aforesaid to meet her annual allowance shall be dealt with and divided by my said trustees according to the manner herein prescribed regarding the other portion of my residuary estates: Declaring that my trustees shall have full power, warrant, and authority, notwithstanding the terms of vesting and division hereinbefore mentioned, to invest either before, at, or after the said term of vesting and division in their own names, or in the names of such other persons as my said trustees may select, the whole or such portion of the capital of each of said children's share, as to my trustees may seem sufficient and proper, in trust for behoof of such child and his or her heirs or otherwise, and that on such terms and conditions as to my said trustees may seem proper … with full power to my said trustees to enter into possession of my said estates, and to sell and realise same or any portion thereof by public roup or private bargain, and that at such times and at such prices as to them shall appear proper; with power to them to grant feus or long leases of the heritable estate or any portion thereof for such consideration as to my trustees shall appear proper; and with power to borrow money on the security of my estates or any part thereof, and to excamb any portion of my estates, on such terms and conditions as to my said trustees shall seem proper, and to grant the necessary deeds for these purposes; with power to my said trustees to lend out and invest the funds of my estate on such heritable or personal security and in the stocks or shares of public, private, or joint-stock companies of limited or unlimited liability, and also on debenture bonds of such companies as to them shall appear proper.” …

At the date of his death Alexander Sim was possessed of moveable estate of the gross value of £9950, 4s. 6d., and heritable estate consisting of the estate of Muirton, of which the gross rental was then about £800. He was survived by his widow and four children, William Sim, Mrs Helen Sim or Cornwall, John Duncan Sim, and Alexander Sim.

The youngest of the truster's children, i.e., Alexander Sim, came of age on 11th June 1891; but the trustees continued, nevertheless, with the approval of the beneficiaries, to hold and manage the estate of Muirton, and also to hold certain trust investments. Prior to 11th June 1891, the trustees made the following money payments to the beneficiaries on account of their shares—to William Sim, £1936, 6s. 11d.; to Mrs Cornwall, £612, 4s.; to John Duncan Sim, £835, 2s.; and to Alexander Sim, £23, 5s. 7d.

On 1st June 1892 the said Mrs Sim and her children granted to the trustees a discharge of certain of their intromissions with the trust estate under their management. The granters of said discharge, inter alia, agreed “that the trustees shall continue the management of the estate of Muirton, and account to us, the whole children of the testator, for our respective interests in the rents thereof after paying the said annuities” ( i.e., the annuities to Mrs Sim and another) “and expenses of management and any other outlays, and we give the trustees full discretion to act in the management of same as they shall think best.”

John Duncan Sim died intestate and unmarried on 12th February 1893.

At the date of the death of John Duncan Sim his father's trustees still held the estate of Muirton. They also held for his behoof £1101, 4s. 11d., invested in securities moveable as to succession.

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In these circumstances a question arose as to whether John Duncan Sim's interest at the date of his death in the estate of Muirton was moveable or heritable, and a special case was presented by (1) Alexander Sim's trustees, (2) John Duncan Sim's mother, his sister Mrs Cornwall, and his elder brother William Sim, and (3) John Duncan Sim's younger brother and heir-at-law, Alexander Sim, in order to obtain the opinion of the Court upon the following question of law— “Was the interest of the late John Duncan Sim, at the time of his death, in the estate of Muirton, moveable so far as his succession is concerned?”

Argued for the second parties—John Duncan Sim's interest in Muirton was move—able. It was plain from the trust-deed that the intention of the testator was that the whole of his estate should be divided equally among his children in money. There was a power of sale given to the trustees, and the whole tenor of the settlement showed that the succession was moveable.

Argued for the third party—Although there was a power of sale, it had never been exercised. It was not necessary for the execution of the trust that the heritable estate should be realised. There was therefore no conversion— Anderson's Executrix v. Anderson's Trustees, January 18, 1895, 22 R. 254; Sheppard's Trustees v. Sheppard, July 2, 1885, 12 R. 1193; Auld v. Anderson, December 8, 1876, 4 R. 211. Even if there had been conversion under the will, the actings of the beneficiaries had operated reconversion— Grindlay v. Grindlay's Trustees, November 9, 1853, 16 D. 27; Hogg v. Hamilton, June 7, 1877, 4 R. 848.

At advising—