Lord Justice-Clerk (Alness).—[Having held that a trust had been constituted by Lord Glentanar, the machinery of which, but not the objects of which, had failed, his Lordship continued]—Lord Glentanar has endeavoured to answer the question—What shall be done with the shield?—by appointing new trustees at his own hand, and by demanding that the shield should be handed over to them to administer. The Sheriff-substitute has confirmed that demand. I was at first disposed to think that Lord Glentanar and the learned Sheriff-substitute had both gone too fast, and that they had achieved a right end in a wrong way. On fuller consideration I have come to think that the course adopted by them may be approved. But let me distinguish. Where the machinery of a public trust has broken down because of the declining number of the trustees, because of their absence from Scotland, or because of their inability by reason of age or otherwise to administer the trust, it is common practice to apply to the Court, by way of petition, and to request it to replace the broken machinery; and the Court, on cause shown, in the exercise of its nobile officium, not infrequently grants the prayer of the petition. But I have always understood that the intervention of the Court, exercising its nobile officium, was required to achieve that end, and, in the case of a public trust, I think it is manifest that that is so. If in such a case the truster arrogated to himself the function of appointing new trustees, he would be usurping the jurisdiction of this Court, and asserting the right of a private individual to wield the nobile officium which resides in this Court alone. But then I think there is authority for the proposition that it is otherwise in the case of a trust to which the, term “public” cannot with strict accuracy be applied. Now, I understand that all your Lordships are of opinion that the trust with which we are here concerned is not a public trust in the ordinary acceptation of the term. I do not differ from that view. It is manifestly convenient that it should prevail in this case. It coincides not only with convenience, but also I think with good sense. I am of opinion that the procedure in this instance may be short-circuited; that a petition to the nobile officium of the Court may be dispensed with; and that the interlocutor of the Sheriff-substitute should be affirmed. I advise your Lordships accordingly.
Lord Ormidale.—[Having stated his conclusion that a trust had been constituted, the machinery of which, but not the objects and purposes, had failed, his Lordship continued]—The question remains, however, whether the pursuers are entitled to the order which they ask for delivery of the shield to them. That depends on whether Lord Glentanar had the power to appoint new trustees as he did. I have come to think that he had. If this were clearly a private trust, there would be no difficulty, because there is, at common law, a reserved right in a truster to nominate new trustees when the original trustees have failed, and the cases cited by the Sheriff-substitute would be directly in point. On the other hand, if it were clearly a public trust, an application to the Court, duly advertised and intimated, would be necessary. But the trust cannot be regarded as falling precisely into the latter category; and, as the trust will be administered by the new trustees named by the truster on exactly the same lines as formerly and in the interests of the identical beneficiaries, no good purpose can be served by giving effect to what, in the circumstances, would be a merely technical and formal objection, stated by parties who have no right or title to insist in it.
Accordingly, the pursuers are, in my opinion, entitled to an order for delivery of the shield.
Lord Hunter.—[Having expressed the opinion that the Sheriff-substitute was right in finding that a trust had been constituted, his Lordship continued]—As regards that part of the Sheriff-substitute's interlocutor which ordains delivery of the shield to the new trustees nominated by Lord Glentanar, I desire to make one or two observations. In the course of the discussion we were not referred to any decision of the Court having a direct bearing upon the question of the right of a truster in a trust similar to the present to make a new appointment of trustees, when those nominated by him fail from one cause or another. The Sheriff-substitute, however, has referred to a passage from the opinion of Lord Shand in the case of Newlands v. Miller, in which that learned Judge says: “It appears to me that in a case like this, in which parties have named trustees under their marriage-contract, and where, by resignations, or deaths, or otherwise, the trustees originally named fail, it is in the power of the persons who created the trust to do what is necessary to keep it in motion, by providing the requisite machinery. I am of opinion that, having originated the trust, and having had the radical right in the subjects of the trust, the trusters are entitled to name new trustees, if the trustees named should, from any circumstance, fail.” This view was given practical effect to in the two previous cases of Lindsay v. Lindsay and Tovey v. Tennent . It may be noted that in the earlier of these cases, where the trustees under an antenuptial marriage-contract had failed by death and resignation, and the original trusters and their children, who were the parties interested, presented a petition craving the Court to appoint new trustees, the Court refused to make such an appointment. The Lord Justice-Clerk said: “I am disposed to think that enough of radical right remains with Mr and Mrs Lindsay, under the deed, to make a nomination of new trustees themselves.” Thereafter, in a summons of declarator by the trusters against their children, it was found that the pursuers were entitled to appoint new trustees. No doubt the cases to which I have made reference were cases of private trusts, while in the present case the trust partakes, to some extent at all events, of the nature of a public trust. Is there, however, any good reason for drawing a distinction on that account, and for refusing recognition of the trustees selected by Lord Glentanar? The shield came from him. He presented it to the Association that they might organise annual competitions for it among juvenile brass bands. If they had refused the trust, he might have refrained from making the presentation or he might have selected other trustees. After they have acted for a year or two and then become incapable of further action, why should he not be entitled to ask others to discharge the duties connected with a trust created by himself, or why should his action in making a new appointment be described as a usurpation of the power of the Court? It is conceded that he has the right to bring an action to prevent breach of the trust by those who do not even claim to be administering as trustees, and yet the action that he has taken to make the trust effectual is said to be beyond his power.
As I understand the defenders' contention, the present action ought to be sisted in order that a petition may be brought, presumably by Lord Glentanar, craving the Court, in the exercise of its nobile officium, to appoint new trustees to take delivery of the shield and administer the trust. The petition is to be advertised and the juvenile brass bands of the country, as the beneficiaries of the trust, are to be given an opportunity to intervene and make suggestions as to the trustees to be appointed. So far as I can see, the defenders are not going to benefit by this course being adopted, and I do not think that they have either right or interest to advance such a contention. In whose interest is this procedure to be followed? Who is to bear the expense involved? The silver shield may be an interesting trophy, but it would afford a very uncertain fund of credit on which to raise the necessary funds to embark upon litigation. Doubtless Lord Glentanar may be prepared in the present case to meet the expenditure involved in setting up a new trust under the authority of the Court. But all generous donors of club trophies in a similar situation may not be similarly disposed, and may have reluctantly to recognise that it is a matter of sound economics for them to let their gifts perish in the sea rather than enlist the Court's aid in setting up a new trust.
The opinion I have expressed does not conflict with the view that in cases of proper public trusts it is proper that new trustees should be appointed only by the Court, but even in such cases I desire to reserve my opinion as to the universality of the rule of practice.
Lord Anderson.—[Having held that a trust had been constituted, his Lordship discussed certain contentions advanced by the defenders and proceeded]—Finally, the defenders contended that they were entitled to retain until new trustees have been properly appointed. It was urged that Lord Glentanar had no right to appoint new trustees, but that that right was solely in the Court by way of an exercise of the nobile officium. I do not see that the defenders have any higher title to urge this contention than that of amici curiœ, as our decision on the other points in the case deprives them of all interest in the future of the shield. The defenders, however, profess to be anxious to retain the shield till this suggested judicial appointment has been made, for what reason I am unable to surmise. I should have thought that the liquidator, now that it has been decided that he cannot turn the shield into money, would have been glad to get rid of the responsibility of keeping it, with, I presume, the incidental cost of insuring it, and would not have resisted a decree ordaining him to deliver it to Lord Glentanar. I have reached the conclusion, however, that the judgment of the Sheriff-substitute on this part of the case is right, and the contention of the defenders wrong. If this were a public trust, in the full and proper sense of the term, then the appointment of new trustees would undoubtedly have to be made by the Court in virtue of the nobile officium—Anderson, 1914 S. C. 942. But I do not regard the trust as being of that character. There are no funds which have to be administered for public ends. In such a case the matter of the personnel of the trustees is of importance. Here the only patrimonial interest involved is the annual possession of a corporeal moveable which does not produce any revenue. The only interest which the beneficiaries—the juvenile brass bands—have is to be assured that the contests for the shield will be conducted under fair conditions. Now the trustees who have been appointed are prepared, as I have already pointed out, to conduct the contests in the future on the same conditions as applied to contests in the past. This being so, it does not seem to concern the beneficiaries who are to be custodiers of the shield. The trust seems to me to be more akin to a private trust than to a public trust in the proper sense of that term. Now, in the case of a private trust, a living truster may appoint new trustees to take the place of those who have failed—Lindsay, 9 D. 1297; Tovey, 16 D. 866; Newlands, 9 R. 1104. I am therefore of opinion that Lord Glentanar was entitled to make the appointment which has been made.
On the whole matter, I am of opinion that the appeal should be refused, and interlocutor of the Sheriff-substitute affirmed.
