United Kingdom House of Lords Decisions

Lord Chancellor—My Lords, in this case the name of the appellant appeared on the register at the time of the winding-up as holder of shares in the bank as a trustee under the marriage-contract of Mr and Mrs Fyfe, dated the 2d of October 1855. Two questions have been raised upon the appeal—first, did he ever accept the trust of this settlement? and, secondly, if he did, did he authorise the shares in the bank to be transferred into his name, or did he know they had been so transferred?

With regard to the acceptance of the trust, I think it clear that he did accept it. The evidence is both documental and verbal. As to the documentary evidence, it is not derived from the marriage-settlement itself, for the marriage-settlement is not executed by any of the trustees, but in the month of March following (1856) there is a transfer by Mrs Fyfe, as executrix of one Bogle, to the four trustees of the settlement—Neilson, Hall, Welsh, and the appellant—of certain Glasgow and South-Western Railway stock, and the transferees are described as “trustees nominated under and by virtue of the said antenuptial contract of marriage,”and the appellant and his cotrustees agree in that capacity to take the shares. This deed is signed by the appellant, and his signature is witnessed by Mr M'Clure, the law-agent of the trust. This alone would seem to me to be conclusive. There is, however, the further written evidence of a dividend warrant of the 7th of August 1856, running thus:—“Pay to Mrs Fyfe, or bearer, £9, 2s., being dividend … on 30 shares of the City of Glasgow Bank standing in the name of trustees for Mr and Mrs Fyfe under marriage-contract.” This is signed by the appellant and his co-trustees, each adding the word “trustee” to his name. There is further the letter of the 20th February 1868, written to Mr M'Clure at Greenock by the appellant from Liverpool. Mr M'Clure had called a meeting of the trustees upon the death of Mr Fyfe. The appellant writes:—“Dear Sir, I am very sorry to hear from Mr Fyfe's son of the death of his father. He says you wish to have a meeting of the trustees under the marriage-settlement to-morrow. I regret, however, that I cannot go north at present.”

With regard to the parole evidence I need not go beyond that of Mr Ker himself. He nowhere says that he did not accept the trust. He was a merchant at Greenock, and the agent there of the Glasgow Bank. He must have known perfectly well the meaning of the dividend warrant, and all he says about it is—“I did not know that I was registered as the owner along with my co-trustees of these shares. I did not know that my individual name was there, but I knew that the 30 shares were registered in the names of Mr and Mrs Fyfe's trustees. I signed the warrant as one of Mr and Mrs Fyfe's trustees.” Then he says—“After I removed to Liverpool I met the late Mr J. Welsh, and had a conversation with him about this marriage. He said to me—‘Now that Fyfe is dead, there is no use of your being on the trust, or of my being on it. We run no risk, but we may as well be off it. Write me a note on the subject.’ I have a very distinct recollection of writing to him to the effect that being away from Greenock, and being of no use to the trust, I begged to get my name removed.” I need hardly say that this evidence is only consistent with the idea of the appellant having been a trustee of the settlement.

I now come to the circumstances under which his name was placed on the register. It appears that this was done through Mr M'Clure, who wrote to Neilson, one of the trustees, at Glasgow. Neilson is now dead, but his letter, dated the 10th March 1856, states that he had called at the City Bank, and expected to have the matter closed next day, having left the marriage-contract at the bank. On the 12th of March 1856 he writes thus—“City Bank, new certificate in trustees’ favour received.” It is to be observed that the bank stock having been included in the marriage-settlement it would become the duty of the trustees, and of their legal agent, to provide in some way for the perfecting of the title by the trustees to the stock, and for preventing any improper dealing with it by the original owner. Whether a transfer of the stock into the names of the trustees was the only way in which this could be done it is unnecessary to consider. It clearly was one of the ways; and the action of Mr M'Clure in obtaining a transfer of the stock, if it was not sanctioned before hand by the appellant, might naturally be approved by him after he knew it. The dividend warrant, to which I have already referred, clearly shows that he did know it on the 7th of August 1856, if not sooner, and he made no objection to it. His position as agent of the bank would make him familiar with the meaning of the warrant, and he does not in his evidence deny that this was the case. He says—“From having signed the warrant, I conclude I must have known that there was City of Glasgow Bank stock under the marriage-contract, but it had escaped my memory;” and further on he says, in the words I have already quoted—“I did not know that I was registered as the owner along with my co-trustees of these shares; I did not know that my individual

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