Scottish Court of Session Decisions

The Lord President—The question before us arises under a trust-deed executed by Andrew Farquharson in 1823. By it he vested his property in trustees for various purposes—the payment of his debts, and of certain legacies, and the paying of the free liferent of his estate of Breda to his widow—and then comes the last purpose, which was in these terms—viz.—“I hereby desire … my said trustees … as soon after my decease as they possibly can, after payment of all my debts, the foresaid legacies, and such others as I may appoint, and without prejudice to the right of liferent before granted to the said Mrs Ann Farquharson, but subsidiary thereto, to make and execute a valid and formal deed of entail of my whole lands and estate of Breda, particularly before described, … settling my said estate upon Robert Farquharson” and a certain series of heirs. The truster died in 1831, and his widow lived till 1856, when she died. He left very considerable debt, looking to the amount of his property; and as the widow enjoyed a liferent, it became pretty clear that little could be done towards extinguishing it during her life. After her death there was, according to the view of the pursuers, little chance of the debts being paid for a long time. The other parties, however, say that they have been already very materially diminished. The parties do not concur on this point. This action was then raised; and it concludes in substance that Mr Duncan, the sole surviving trustee, is bound to make over the estate to the pursuer as first heir of entail, subject to the debts, and alternatively that he is bound to sell so much of the estate as will pay the debts, and make over the remainder. It is maintained by the pursuers that we must grant one or other of these conclusions; and it is said that unless we do so there is no prospect of any heir of entail enjoying the estate for at least fifty or sixty years. The sole surviving trustee resists the action, and so does Mr Farquharson of Whitehouse, a representative of another trustee, now dead. They say that the debts will be extinguished in a few years. But they further say that the trust-deed gives no authority or power to sell. That is the main question. It is pretty plain there is no express power to sell. Is there an implied one? There may be another question—namely, whether the exigencies of the trust are such that a sale is absolutely necessary for their extrication. That is a separate question, but it cannot now be decided in favour of the pursuers, for the parties are at variance as to the facts which raise it. On the first aspect of the matter it is very clear that the maker of this trust expected that his debts would be paid from the rents without the necessity of any sale. But it is said that he miscalculated the state of his finances, and that a sale is now necessary in order that his leading object, which was the payment of his debts, might be accomplished. Cases are referred to in order to prove that the Court have the power asked. I have no doubt of that, if it be possible to gather an implication of it from the trust-deed. I do not discover that in the deed before us. I think the whole scope of the deed is, on the contrary, adverse to such a thing. The truster says the estate is to be entailed when the debts are paid, and when the widow's liferent ceases. That of itself implies that the rents are to be applied to the extinction of debts. Then he authorises certain house property to be sold, but gives not a hint as to the sale of Breda. Again, he contemplates a state of matters under which his heir of entail is to be in possession of a certain portion of the estate but not of the estate itself. He contemplates that the heir is to possess the mansion-house and the farm of Mains. I read that clause as meaning that no rent is to be paid for that possession by the heir of entail. That being so, it is demonstrated that the rest of the rents were meant to be applied in payment of the debts. I think that this putting of the heir of entail in possession of a certain portion of the estate was equivalent to saying that he was to get a portion of the rents, and that the other surplus rents were to go to pay debts. If that had been said in so many words, could we for a moment have listened to the

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