Scottish Court of Session Decisions

It appears to me that the latter is the true view. The question is not one as to an heirloom, or as to a family estate, or a family residence, or anything of that sort. There is no suggestion of any delectus, such as might be held in such cases. The case is, I think, just the same as if the subject of the bequest was a tenement of houses, or a range of shops, or some similar subject, which the truster had bought as an investment, and over which (as here is) she desired to create and secure a liferent by a trust set up in the usual terms. I do, I confess, think that with respect to such a bequest and relative trust it is easier to read into the bequest such words as “Or the proceeds thereof when sold,” or such words as “Subject always to the powers herein expressed,” than to read into the subsequent powers clause words of exception—words excluding an important part of the trust estate from the general power.

I may perhaps add, that although the cases cited to us under the Trusts Act may not be directly applicable, these cases, and particularly the case of Birkmyre, 8 R. 477, appear to me to show very distinctly that if there had been in this trust—deed no power of sale at all, the Court, if applied to, would have had no particular difficulty in granting the power of sale claimed. They certainly granted the power in the case of Birkmyre although the properties proposed to be sold formed, as here, the subject of a special bequest, and were, as here, directed to be held during a life—rent and sold at its termination. And they did so upon the ground that even in such a case (a case where there was no power of sale at all) an immediate sale was (if found expedient) not inconsistent with the truster's intention. It rather appears to me that if that could be affirmed there, where the question was as to the creation of a power of sale, it may a fortiori be affirmed here, where the question is only as to the application of a particularly wide general power to a certain part of the trust estate.

I should perhaps also add that we, of course, assume that the trustees, in proposing to sell the shares in question are acting fairly and honestly and in the general interest. They state that they have been advised by their stockbroker that a sale is expedient, and we are not called upon even to consider the matter.

Lord Kincairney—I have found this a difficult case, as to which my opinion has wavered. I have ultimately come to think that the answer may be affirmative. No doubt the direction to hold during the life of the first party is definite and clear, and I do not suggest that it can be read as a power to realise. The general power to realise is also clear, and might no doubt cover the Great Central shares. Yet I do not consider that there is any inconsistency or repugnancy between the two parts of the deed. They are easily reconciled by holding that the general power of sale applies to the shares only after the first party's death. There would be no inconsistency if the general power to sell were so read, and that appears to me to be the true construction.

But I think that is not the whole case, and that the special character of the shares requires consideration, and also the limited nature of the first party's professed intention.

The truster acquired the shares in March 1898, and she received two dividends on 30th June and on 31st December 1898. Her trust deed was executed on 30th November 1898, so that when she bequeathed these shares she bequeathed them as a dividend—yielding subject, and she mentions the dividends specially. But her trustees inform us that the shares have never yielded a dividend since, so that it may be fairly concluded that they have proved a different kind of property than she intended and supposed. The testatrix died on 13th January 1899, before another term of paying dividend had arrived.

The first party does not venture on any prophecy as to the future of these shares. Had he been able to affirm that they were falling in the market, and would in all likelihood continue to fall, there might have been very plausible reasons for authorising a sale, on the principle of the case of Downie, which was quoted at the debate, in which heritable property which from change of circumstances had lost its value was sold by trustees with the authority of the Court, although the trust deed contained no power of sale. No statement to that effect has been made, but both parties have stated that they have been advised that it would be wise to sell.

The right and interest of the first party is really the only obstacle to the sale. If he were dead there would be no doubt about the power and the duty of the trustees. There seems no one else who has an interest to oppose a sale. There is no reason to suppose that the truster had any predilection for the shares, or looked on them otherwise than as an investment. It may be worthy of notice that the first party's professed object is not the conversion of the shares into cash, but only an alteration of the investment.

Lord Stormonth Darling—The first party to this special case is a nephew of the testatrix and a beneficiary under her will, the third purpose of which directs her trustees to hold in their own name her shares of the Great Central Railway Company, and pay the dividends or annual income thereof to him during his lifetime. The deed then goes on to direct that immediately after the decease of the said George William Galloway the trustees are to “realise the said shares and to pay the price or value thereof” to such

Page: 715↓