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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shearer (Shearer's Tutor), Petitioner [1924] ScotLR 309 (23 February 1924)
URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0309.html
Cite as: [1924] SLR 309, [1924] ScotLR 309
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SCOTTISH_SLR_Court_of_Session
Page: 309↓
Court of Session Inner House Second Division.
Facts:
The Trusts (Scotland) Act 1921, which provides (section 4 (1)) that in all trusts the trustees shall have power, inter alia, to sell heritage, also provides—Section 2—“‘Trust shall mean and include … ( b) the appointment of any tutor … by deed, decree, or otherwise. ‘Trust deed’ shall mean and include … ( b) any decree, deed, or other writing appointing a tutor.… ‘Trustee’ shall mean and include … any tutor.…” Held that the Trusts (Scotland) Act 1921 does not include within its ambit the case of a “tutor-at-law,” in respect that he owes his position to the operation of the common law and not to any appointment.
George Alexander Shearer, wine and spirit merchant, Greenock, tutor and administrator-in-law of his pupil daughter Winifred Alexander Shearer, who resides with him, petitioner, with the consent and concurrence of (1) Dorothy Grace Hunter Shearer and Mary Steel Shearer, the minor daughters of the petitioner, both residing with him, and the petitioner as curator and administrator-in-law of his said minor daughters, and (2) Mrs Grace Hunter or Steel, widow of John Scott Steel, sometime builder in Greenock, the maternal grandmother of the said Winifred Alexander Shearer, Dorothy Grace Hunter Shearer, and Mary Steel Shearer, presented a petition in which he prayed the Court “to grant warrant to and authorise the petitioner, as tutor and administrator-in-law of his pupil child Winifred Alexander Shearer, to sell the said Winifred Alexander Shearer's one-third pro indiviso share of the heritable subjects to which she and her sisters have completed title by service as heirs-portioners of their grandfather, the late George Alexander Shearer, wine and spirit merchant,… and that either by public roup or private bargain.”
The petition set forth, inter alia—“That the petitioner is the tutor and administrator-in-law of his pupil child Winifred Alexander Shearer, who was born on 23rd March 1913. He is also curator and administrator-in-law of his two minor daughters Dorothy Grace Hunter Shearer and Mary Steel Shearer, who are fifteen and fourteen years of age respectively. The said three daughters are the whole family of the petitioner. That the said John Scott Steel, the maternal grandfather of the petitioner's daughters, died intestate at Greenock on 14th May 1918. He was survived by his widow, the said Mrs Grace Hunter or Steel, but left no lawful issue, his only child Mrs Mary Gibson Steel or Shearer (the petitioner's wife) having predeceased him. His grandchildren,
Page: 310↓
the said three daughters of the petitioner, were accordingly his nearest heirs. That on 21st November 1919 the said Dorothy Grace Hunter Shearer, Mary Steel Shearer, and Winifred Alexander Shearer were served nearest and lawful heirs-portioners in special of the said John Scott Steel to the following heritable subjects:—(1) The tenement of dwelling-houses forming No. 2 Adam Street, Gourock; (2) the said dwelling-house known as ‘Ardmay,’ and forming No. 91 Newark Street, Greenock; and (3) the tenement of dwelling-houses forming No. 72 Dempster Street, Greenock.… That the said heritable properties formed the whole heritable estate of the said John Scott Steel. His only moveable estate consisted of household furniture and plenishing, valued at £73, 12s. 6d., which was exhausted in payment of his debts and funeral expenses. That, following the procedure prescribed by the Intestate Husband's Estate (Scotland) Acts 1911 and 1919, the said Mrs Grace Hunter or Steel raised an action in the Sheriff Court of the sheriffdom of Renfrew and Bute at Greenock against the petitioner's said daughters and against himself as their tutor and administrator-in-law, and on 31st October 1919 obtained decree in absence finding and declaring that she was entitled to £500 sterling, part of the estate of the said John Scott Steel, absolutely and exclusively, in terms of section 2 of the said first-mentioned statute, with interest thereon from 14th May 1918 at 4 per centum per annum until payment.… That in addition to the said £500 the said Mrs Grace Hunter or Steel is entitled by virtue of her right of terce to receive one-third of the free rental of the said heritable subjects. That at the time when the said action was raised by the said Mrs Grace Hunter or Steel the subjects referred to were valued as follows:—
1. Tenement, 2. Adam Street, Gourock
£1200 0 0
Less bonds
800 0 0
£400 0 0
2. Dwelling-house ‘Ardmay,’ 91 Newark Street, Greenock.
£ 830 0 0
Less bond
600 0 0
230 0 0
3. Tenement, 72 Dempster Street, Greenock £
1450 0 0
Less bond
850 0 0
600 0 0
£1230 0 0
That the said Mrs Grace Hunter or Steel desires payment of the said £500 and interest, and in view of the existing bonds over the properties the requisite money can only be obtained by the sale of one or more of the said subjects. That the present is a suitable time to sell the said properties. Should their sale be delayed for any considerable time loss is almost certain to be sustained, not only by the petitioner's pupil child, the said Winifred Alexander Shearer, but also by his two minor children who are owners of pro indiviso shares along with their sister. An offer of £1200 has recently been received for the dwelling-house ‘Ardmay,’ and such a favourable offer is not likely to be received again. That the free net income derived from the said properties is so small that it would be greatly to the advantage of the petitioner's said pupil child and of her sisters that the properties should be sold and the proceeds invested in some trust security.”
Argued for the petitioner—It was doubtful whether the Trusts (Scotland) Act 1921 conferred power upon a tutor-at-law to sell his ward's heritage— Forbes, 1922 S.L.T. 294; Robertson, 1865, 3 Macph. 1077, per Lord Justice-Clerk (Inglis) at 1079. If the Act did not confer power to sell the Court ought to confer the power in exercise of its nobile officium. The Court would grant the power where it was necessary or where great loss would otherwise be caused— Logan, 1897, 25 R. 51, 35 S.L.R. 51; Campbell, 1880, 7 R. 1032, 17 S.L.R. 706; Lord Clinton, 1875, 3 R. 62, 13 S.L.R. 31; Mackenzie, 1855, 17 D. 314. In the circumstances of the present case it was expedient that the Court should grant the power.
At advising—
It may be convenient to examine the last alternative first. If the Trusts Act has conferred on the petitioner a right to sell heritage then the petition is inappropriate and falls to be refused. If on the other hand the Trusts Act has not conferred that power on the petitioner, the petition, in so far as the Act is invoked, is incompetent and equally falls to be refused. But in either event the legal position of the petitioner will be clarified and a certain advantage thus secured to him. The only way in which the petitioner can bring himself within the ambit of the Act in question is as follows:—He points to section 4 (1) which provides that “in all trusts the trustees, shall have power … ( a) to sell the trust estate or any part thereof, heritable as well as moveable.” Now there are two words in that provision which require definition—“trust” and “trustees.” Turning then to the interpretation clause, section 2 ( b), I find that “trust” means and includes, inter alia, “the appointment of any tutor, curator, or judicial factor by deed, decree, or otherwise.” Trustee by the same section includes “any … tutor.” Now a difficulty—and I own that on consideration I regard it as a formidable one—with which the petitioner is at once confronted is that as tutor-at-law he does not owe his position to any appointment. He owes it to the operation of the common law and to that alone. As the Lord Justice-Clerk (Inglis) said in the case of Robertson ( 3 Macph. 1077, at p. 1079) when dealing with the curatorial relationship between parent and child
Page: 311↓
I will only add two further observations on this part of the case—(1) That the process whereby tutors of certain types are spatchcocked into a Trusts Act is highly artificial and must not in my opinion be widened beyond the express injunctions of the statute, and (2) that if it be asked why tutors-at-law should be excluded from the beneficial operation of the Act of Parliament while tutors-nominate and dative are included, the answer may probably be found in an observation made by Lord Anderson in the course of the argument to the effect that in the former case the truster or the Court exercises a power of selection, whereas the appointment of a tutor-at-law depends on the mere accident of blood relationship, and may not always prove an appropriate one.
Mr Chree very properly cited to us the case of Forbes ( 1922 S.L.T. 294) in which Lord Ashmore held that the tutrix of a pupil child had power to sell heritage in virtue of the combined operation of the Guardianship of Infants Act 1886 and the Trusts (Scotland) Act 1921. It follows from what I have said that, with great respect to the Lord Ordinary, I am unable to concur in that view. In so far therefore as this petition invokes the aid of the Trusts Act 1921 I think it fails.
The appeal to the nobile offlcium of the Court, however, may succeed. The petitioner has presented a strong ex parte case in favour of a sale of the property in which his ward is interested, and in particular of one of the houses comprised in it. But after all the statement is an ex parte one and I think that it would be in accordance with good practice that we should be furnished with a report from a man of business upon the petitioner's averments before being invited to grant the prayer of the petition. That course was followed in each of the cases cited to us by Mr Chree, viz.— Mackenzie, 17 D. 314; Lord Clinton, 3 R. 62; Campbell, 7 R. 1032; and Logan, 25 R. 51. It must be remembered that the Court is invited to exercise a delicate jurisdiction in authorising a tutor to alienate the estate of his ward—so delicate, it has been said judicially, as that mere prospective advantage to the estate will not justify the exercise of the jurisdiction. To that end the sale must be shown to be necessary in order to avoid loss. And I may add that on his averments the petitioner need not shrink from the application of this test. I agree therefore that we should in the first place make a remit to a man of business to report upon the petition. Should that report be favourable it may then be possible in the exercise of the nobile officium to grant the prayer of the petition.
The petition is at the instance of George Alexander Shearer, the father of the said heirs-portioners. He sues as tutor and administrator-in-law of his youngest daughter Winifred, who is eleven years of age. The petition is brought with the concurrence of (1) Dorothy and Mary Shearer, the minor daughters of the petitioner, and of the petitioner as their curator and administrator-in-law,
Page: 312↓
The provisions of the Trusts (Scotland) Act 1921, which have to be considered are sections 4 (1) ( a) and the definitions in section 2 of “trust,” “trust-deed,” and “trustee.” Section 4 (1) ( a) is in these terms—[ His Lordship quoted the section]. It is to be noted (1) that the section assumes the existence of a trust containing “terms” or “purposes.” Prima facie this would exclude a tutor-at-law whose fiduciary duties are prescribed, not by the particular terms of a specific trust-deed, but by the general principles of the common law. (2) By implication the section applies only to those “trusts” and “trustees” defined in the statute. This involves consideration of section 2—the definition clause—in order to ascertain what is the statutory meaning of those terms. The term “trustee” is defined as meaning and including “any trustee under any trust whether nominated, appointed, judicially or otherwise, or assumed, whether sole or joint, and whether entitled or not to receive any benefit under the trust or any remuneration as trustee for his services, and shall include any trustee ex officio, executor-nominate, tutor, curator, and judicial factor.” It is to be observed that in the general enumeration of offices at the end of the definition while “executor-nominate” is included, “executor-dative” is not. The reason is probably this, that while an executor-nominate may have on occasion to act as a trustee, an executor-dative can never have to do so, being appointed for the sole purpose of administering and distributing the moveable estate of an intestate. The term “tutor” occurring in this definition, while habile, standing by itself, to include “tutor-at-law,” does not, in the context, seem to do so. The last clause of the definition is controlled and qualified by the earlier part of the definition, which suggests that the offices referred to in the last clause shall have been created by nomination, appointment, judicial or otherwise, or assumption. None of these modes of creation is applicable to the office of “tutor-at-law,” which arises ipso jure by the joint operation of the common law and the fact of blood relationship. This conclusion is confirmed by a reference to the definitions of “trust” and “trust-deed.” “Trust” is defined as meaning and including “( a) any trust constituted by any deed or other writing, or by private or local Act of Parliament, or by royal charter, or by resolution of any corporation or public or ecclesiastical body, and ( b) the appointment of any tutor, curator, or judicial factor by deed, decree, or otherwise.” The definition of “trust-deed” is made to correlate exactly with the definition of “trust.” “Trust-deed” is defined as meaning and including “( a) any deed or other writing, private or local Act of Parliament, royal charter, or resolution of any corporation or ecclesiastical body constituting any trust, and ( b) any decree, deed, or other writing appointing a tutor, curator, or other judicial factor.” It is plain from these definitions that the “trust” referred to in section 4 (1) ( a) is one either ( a) constituted by deed, &c., or ( b) the appointment of a tutor, &c., by deed, decree, or otherwise. Now, there is no constituted trust which the petitioner as tutor-at-law has to carry out, nor has he been “appointed” to his office either “by deed, decree, or otherwise.” It is plain that by the rule of ejusdem generis the term “otherwise” means something of the nature of a deed or decree. The term would be satisfied by appointment under an informal writing or, say, by trustees at a meeting of trustees, the evidence of appointment being a minute of meeting. It is, in my view, a misuse of the term to suggest that the petitioner was “appointed” to his office by the common law. We were referred to a case of Forbes ( 1922 S.L.T. 294) in which Lord Ashmore had decided that a mother, as tutrix of her pupil son under the Guardianship of Infants Act 1886, had power by virtue of the Trusts (Scotland) Act 1921 to sell the heritage of her ward. In view of the opinion I have expressed, that decision is unsound. A mother as tutrix under the Act of 1886 is in the same position as regards the provisions of the Trusts Act 1921 as a father or any other tutor-at-law. She is not “appointed” to her office; she takes it vi statuti by the provisions of an Act which confer the privilege of legal tutory in appropriate circumstances on any Scottish mother.
If a reason be sought for the exclusion of tutors-at-law from the ambit of the Trusts Act 1921, it is not hard to find. When a trustee is appointed by deed or decree there is opportunity for selection, by the truster or the Court, of a fit and proper person for the office, and the Legislature may well have thought it right to confer on a person so chosen the statutory powers and privileges. But in the case of a tutor-at-law there is presented no such opportunity of selection; the office may fall to one who is not a fit and proper person for its discharge. It is therefore not surprising that the Legislature
Page: 313↓
If then, as I think, the petitioner is not empowered to sell by virtue of the provisions of the Act of 1921, it remains to be considered whether he has made out a case for authority being granted under the prayer of the petition, in virtue of the nobile offlcium of the Court. Such authority is granted only where a sale is necessary, where there is “urgency to avoid loss,” or where there is “the highest possible expediency” in granting the power craved— Lord Clinton, 3 R. 62; see also Mackenzie, 17 D. 314; Campbell, 7 R. 1032; Logan, 25 R. 51. It is the almost invariable practice of the Court in cases of this nature to remit to a reporter before deciding whether or not authority should be granted. In the present case it is true that the petitioner, by the production of an extract of the foresaid decree in favour of the intestate's widow, has made out, prima facie at all events, that it is necessary to sell some part of the heritage. As, however, there ought to be a report as to the two tenements, I suggest to your Lordships that the reporter should be invited to report on all three properties.
The Court pronounced this interlocutor—
“… In hoc statu remit to Mr John Cameron, solicitor in Greenock, to inquire as to the value of the three heritable properties mentioned in the petition and to report thereon, and also to report as to the expediency and desirability of the sale thereof.”
Counsel for the Petitioner— Chree, K.C.— King Murray. Agent— D. Maclean, Solicitor.