Scottish Court of Session Decisions

William Hodge Coats, John Alexander Spens, and Ernest Symington Coats, the testamentary trustees acting under the trust-disposition and settlement of Archibald Coats of Woodside, dated 6th November 1901, presented a petition to the First Division of the Court for special powers.

The petition set forth, inter alia—3. By said trust-disposition and settlement the testator, after providing for payment of his debts and funeral expenses, and the expenses of executing the trust, and of certain legacies and provisions, provided, inter alia, as follows, videlicet—( Fifth) I direct my trustees as soon as possible after my decease, after paying over or providing for the aforesaid debts, legacies, and provisions, to make a division of all the residue of my real, heritable, personal, and moveable property and estate in the following proportions, and subject to the provisions after specified.… And I suggest to my trustees that the principle of the aforesaid division shall be so carried out by my trustees that each of my said children shall receive as nearly as may be a proportion corresponding to the amount of their shares respectively of each stock, security, or other asset forming part of my estate, and in the case of any heritable, real, or other property which may not be readily divisible the same shall … be valued by my trustees and shall be assigned by them according to such valuation as part or of any share so sold or disposed of as they according to the best of their judgment shall decide.

4. By the eleventh purpose of said trust-disposition and settlement the testator empowered his trustees to sell all or any part of the trust estate either by public roup or private bargain

6. The testator left moveable estate of the value over £1,000,000, as well as considerable heritable estate. Part of his moveable estate consists of a valuable collection of pictures. The petitioners have had an inventory and valuation of the most valuable pictures in the collection made by Messrs Christie, Manson, & Woods, London, which is dated 28th May 1913.… The total value put upon the pictures in said inventory and valuation is £34,577, but in respect that the collection comprises, inter alia, pictures by artists whose works generally fetch high prices, there is a possibility that some, at all events, of the pictures might realise at a public sale higher prices than those put thereon in said inventory and valuation.

7. The petitioners obtained said inventory and valuation with the view of obtaining guidance as to the value of said pictures and the proper course to follow in dealing with them. They proposed to assign the said pictures according to said valuation to the petitioner William Hodge Coats, who with his wife and son lived with the said now deceased Peter Mackenzie Coats at Woodside aforesaid, where said pictures

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are, and which house the trustees are also assigning to the petitioner William Hodge Coats. The said Mrs Helen Elizabeth Coats or Chichester and Miss Evelyn Dudley Coats, who is claiming her legitim out of the estate of the testator, have, however, represented to the petitioners that the best way to ensure that said pictures shall realise their fair value is to sell them by public roup. Looking to these representations the petitioners deem it proper that at any rate all the more valuable of said pictures should he sold by public roup. The petitioner William Hodge Coats, however, desires an opportunity to bid for and purchase at the sale such of said pictures as he may see fit.

“8. The petitioners, the said John Alexander Spens and Ernest Symington Coats are satisfied that it is not in conformity with the intentions and wishes of the testator that the petitioner William Hodge Coats should be debarred from acquiring said pictures or such of them as he desires, and they believe it to be in the interest of the trust estate that if said pictures be sold by public roup the petitioner William Hodge Coats should have the right to bid for them at a sale thereof. The petitioner William Hodge Coats concurs in these views.”

The petitioners prayed the Court “to authorise said pictures to be sold by public roup by the petitioners as trustees fore-said, on such terms as they consider to be most beneficial to the trust estate, under the express condition that the said William Hodge Coats as an individual is to be entitled to bid at said sale for all of said pictures, or such of them as he may desire, or alternatively, to authorise said pictures to be sold by public roup by the petitioners, the said John Alexander Spens and Ernest Symington Coats, as trustees foresaid, or by such other person as your Lordships may appoint, on such terms as they consider most beneficial to the trust estate, under the express condition that the said William Hodge Coats as an individual is to be entitled to bid as aforesaid.”

The petition was served on the only persons interested in the estate, and no answers were lodged.

Argued for the petitioners—It was to the interest of the trust estate that the prayer of the petition should be granted, and it was within the nobile officium of the Court to grant the prayer, especially in view of the intention of the testator, disclosed by the power given to the trustees in the fifth purpose to value and assign. Reference was made to the following authorities:— Gillies v. Maclachlan's Representatives, February 11, 1846, 8 D. 487; Taylor v. Watson, January 20, 1846, 8 D. 400, per Lord Mackenzie at 406; Campbell v. Walker, 1800, 5 Ves. 677; Farmer v. Dean, 1863, 32 Beav. 327; Lewin's Law of Trusts (12th ed.), p. 575.