Scottish Court of Session Decisions

Miss Sophia Brown and others, first parties, William Brown and others, second parties, Mrs Stewart and another, third parties, Mrs Wood and others, fourth parties, and John Gill Hastie, solicitor, Edinburgh, fifth party, brought a Special Case for the determination of certain questions arising under the trust-disposition and settlement, dated 18th January 1893, of Charles Wood of Infield, Shetland, who died in 1903. The first, second, and third parties were the next-of-kin of the testator and their representatives. The fourth parties were the testator's widow and annuitants under the settlement. The fifth party was the nearest heir-male resident in Great Britain of John Hastie, the sole trustee nominated under the settlement.

The following narrative is taken from the opinion of Lord Salvesen—“The questions in this Special Case arise out of a trust conveyance by the late Mr Charles Wood. By this deed he conveyed to John Hastie, “or such other person or persons as shall be named by me or assumed into the trust hereinafter constituted, whom failing the nearest heir-male who may be resident in Great Britain and sui juris at the time of the said John Hastie, or such other person or persons, as trustee,” for the purposes therein mentioned, and his or their assignees, all and sundry his whole estate. The purposes of the trust so far as material were, after providing for certain annuities and legacies, (1) a direction to the trustee to manage the residue of his estate and to pay over to his wife the free yearly proceeds and interest therefrom; and (2) on the death of his said wife a direction to his trustee to realise the residue of his estate and to pay and divide the same amongst his nearest-of-kin in moveables. Mr Hastie accepted the office of trustee and executor on the testator's death, and administered the estate as sole trustee until his own death on 28th September 1910. His nearest heir-male is Mr John Gill Hastie, who is resident in Great Britain and who is of full age. He is the party of the fifth part.”

The following questions of law were, inter alia, submitted to the Court—“3. Whether the said John Gill Hastie, the fifth party, is entitled to act as trustee on the testator's trust estate for the purpose of administering the same? or, 4. Whether the trust administration created by the testator has lapsed by the death of the said deceased John Hastie?”

Argued for the first, fourth, and fifth parties—The trust had not lapsed by Mr Hastie's death. His heir-male was plainly included in the conveyance to trustees in the settlement. It was very important to note that the heir-male was called as a trustee in the conveying clause. There was no suggestion whatever that he was there merely to preserve a link in the title. The clause here was in practically the same form as that in the Styles—Juridical Styles (5th ed.), vol. i, 288. It was very well recognised that where the destination in a trust-disposition included the heir of a last-surviving trustee, such heir could administer the trust—Menzies’ Lectures on Conveyancing (new ed.), 682; Wood's Lectures on Conveyancing, 419, 421. In White v. Anderson, November 30, 1904, 12 S.L.T. 493, it was decided by Lord Pearson, on the special terms of the deed then under consideration, that the heir of a trustee had merely a formal title, but his Lordship expressly declined to give an opinion on the point raised here. Lord M'Laren no doubt stated (Wills and Succession, vol. ii (3rd ed.), 913 and 914, sec. 1686) that a trustee by succession could not in general exercise the discretionary powers of the trust. This view, however, was unsupported by authority.

Argued for the third parties—The trust administration had lapsed, and Mr Hastie's heir-male was not entitled to administer the trust. The meaning of the clause was simply that the testator had made provision for the legal title being carried on. The heir's title was merely formal. The law was correctly stated by Lord M'Laren in the passage above quoted—Wills and Successions, vol. ii ( cit. sup.).

At advising—