Scottish Court of Session Decisions

Lord Justice-Clerk—I think this is a very proper case to bring before the Court. It is not a special case raising a bare point of law upon which the parties desire to have the opinion of the Court, but without intending to follow up that opinion by settling a dispute which has arisen among them. This case is one in which the trustees were placed in serious difficulty in respect of doubts concerning their power to sell expressed by more than one of the beneficiaries. They have therefore brought the matter before us.

The plain reading of the will shows that it was the intention of the testator that the trustees should have power to convert any part of the estate, heritable or moveable, into money if they thought fit to do so. I do not think the word “proceeds” can be used as applicable to the moveable portion of the estate only. The sequence shows that the word applies to the whole of the truster's means and estate, both heritable and moveable. A case was quoted in which Lord Westbury expressed his opinion that implication may arise from the form of expression in a deed which involves something else as contemplated by the person using the expression. Here I think the form of the direction to the trustees necessarily involves a power of sale.

Lord Young—I concur and only wish to add that I think this is undoubtedly a competent case to present under the statute. I have no doubt that the trustees have power to sell, but I doubt very much whether they would have been entitled to carry on a mercantile business which is necessarily speculative and might have exhausted the trust-estate. I therefore think that the trustees would be acting reasonably in bringing the estate to a sale. The risk of carrying on the business themselves, or allowing others to do so on their behalf, is of itself an argument for holding that there is a power to sell. There are many cases where a power to sell may be implied from the very nature and character of the estate itself. But in the present case I also agree with the argument that the power is contained in the deed.

Lord Trayner— I have doubts as to whether this is a proper case to present to the Court in this form. The purpose of a special case is not to enable parties to consult the Court, but to enable them to obtain a judgment or opinion on a question which might form the subject of a proper lis between them; and in regard to which they are agreed as to the facts, but differ as to the law. Here there could be no lis except in the event of the trustees proceeding to sell the estate and the beneficiaries raising an interdict against them on the ground that no power of sale was conferred on them by the trust-deed. In this view of the case before us—that there might arise out of the facts submitted to us a lis between the parties— I am not disposed to regard the special case as an incompetent form in which to have the question raised determined.

On the question submitted to us I have no doubt. In the second purpose of the trust the testator authorises the trustees to give the liferent of the estate to his wife by paying her the free rents, interests, and profits arising either from his means and estate or the proceeds thereof. This implies that they may either keep the estate as it is or convert the estate and give her the interest of the proceeds. If this is right as regards the second purpose, the same reasoning is applicable to the third. A power is implied in that also to convert the estate. This view acquires additional force from two circumstances. The testator has given no direction that the trustees should carry on the business. It may therefore be inferred that he did not intend them to do so. In the second place, upon the death of the testator and his wife the trustees are directed to hold the estate for behoof of the children of the truster in liferent and their children in fee. It is impossible to think that the truster meant the trustees to carry on this business, not only during the lifetime of his widow, but also after her death during the lifetime of his children, and to hand it over intact to his children's children.

Lord Moncreiff—I agree with all your Lordships that, on a sound construction of this deed, power to sell is impliedly conferred upon the trustees.

As regards the competency of the special case, I think it may be regarded as competent, in respect that the first parties might have proceeded to sell the business at their own hand, in which case the beneficiary might have objected on the ground that no power of sale is contained in the trust-deed, and they might have applied for interdict on that ground. I think that this case is an economical and convenient mode of settling that question.

Lord Young—As regards the competency of the special case, I should like to add that the question of power to sell may always be determined in a lis such as an action of declarator. That is competent. Or again, trustees might proceed to sell on an arrangement that their title to sell was to be determined in an action raised by them against the buyer for the price. It occurred

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