Scottish Court of Session Decisions

The late Samuel Weir died on 17th October 1876, survived by a daughter, Isabella, aged twenty-six, and three sons, Duncan, Samuel, and Alexander, the eldest of whom, Duncan, was seventeen years old, and the other two in pupillarity. Mr Weir had been a man of considerable means, but, after retiring from business some years before his death, had been living on the capital of his estate, and had met with some loss through a cautionary obligation, so that at the date of his death his only property remaining consisted of (1) a house in South Clerk Street, Edinburgh; (2) two-thirds of a shop in West Adam Street, Edinburgh, the other one-third belonging to his son Duncan, in right of his mother; (3) household furniture, valued at £158, 10s. 6d.; and (4) money in bank, £108, 17s. 8d.

Mr Smith left a trust-disposition by which he conveyed his whole estate and effects to William Smith, writer, Edinburgh, and to his daughter Isabella, as trustees and executors. They were directed to pay his debts; to hold the residue of his estate till his youngest child should attain the age of twenty-one, paying the income of the residue equally to his children, and giving Isabella the use of the house in Clerk Street on condition that the other children should live with her; and when his youngest child should attain twenty-one years of age, to convey the Clerk Street house to Isabella, one-third of the shop in Adam Street to each of his younger sons, and to divide the residue equally among his children.

The money found in bank was almost expended in payment of the truster's debts and in the maintenance of his children up to the date of this petition. The shop in Adam Street was let at a rent of £35 per annum, and this was all the family had for their support. In these circumstances the trustees presented this petition, praying the Court to authorise them, under the Trusts (Scotland) Act 1867, secs. 3 and 7, to sell the two-third shares of the shop and advance the price for the maintenance and education of Samuel and Alexander Weir, and to borrow money on the security of the house in Clerk Street, or to sell it, and to pay the sum so borrowed, or the proceeds of such sale, to Isabella Weir.

The Lord Ordinary remitted to Mr J. W. Tawse, W.S., to inquire into the circumstances set forth in the petition, and to report. Mr Tawse reported, inter alia, as follows:—“ … On the whole, the reporter feels the matter remitted to him one of considerable difficulty, as while it was evidently the intention of the truster that his children should occupy the house in Clerk Street, and receive the rents of the shop in Adam Street till the youngest was twenty-one, when the properties were to be conveyed—the house in Clerk Street to the daughter, and one-third of the shop in Adam Street to each of the two younger children—it is impossible in the present state of matters the intentions of the truster can be carried out, because at present the children have no means of subsistence. In these circumstances, therefore, the reporter thinks it will be sufficient if power is given to the trustees to sell the two-thirds of the shop in Adam Street, and should it be necessary to borrow on the Clerk Street house at a future time, application may be made to the Court for that purpose.”

The Lord Ordinary thereupon refused the prayer of the petition, adding the following note:—

“ Note.—This is a petition by the trustees of Samuel Weir to obtain authority to sell two-third shares of a shop which belonged to the truster, and to apply the proceeds in the education and maintenance of his two sons Samuel and Alexander Weir, to whom these shares are respectively directed to be conveyed on the youngest attaining twenty-one years of age. The Lord Ordinary does not doubt that it would be expedient that the subjects should be sold, and the proceeds applied in the education and maintenance of the truster's children. He has some doubt whether a sale of the subjects would not be inconsistent with the intention of the truster; but he has refused the petition, because he thinks that the rights of Duncan Weir would be prejudiced by the proceeds being applied in the maintenance and education of Samuel and Alexander as proposed. Duncan is entitled to a share of the income derived from the subjects, but if the subjects be sold, and the proceeds paid over to his two brothers, he would necessarily be deprived of his share of the income. The same objections apply to the borrowing of money on the security of the house in South Clerk Street. The Lord Ordinary was referred to the cases of Pattison, February 19, 1870, 8 Macph. 575, and Hay's Trustees, June 13, 1873, 11 Macph. 694.”

After the case had been brought before the Inner House by reclaiming note, Duncan Weir's curator ad litem lodged a minute, in which he stated—“Duncan Weir is agreeable to the trustees being authorised to sell the two-third shares of the shop, and he would at same time sell his one-third, so as to give a complete title to a purchaser; and as the curator humbly conceives that

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the money is absolutely required, that there is no other way of raising it, and that it would be for the benefit of all parties interested to have the property sold, he is ready, and hereby offers, to consent to the Court granting authority to sell as prayed for.”

The case was ordered to be heard before seven Judges.

The petitioner argued—The important point to ascertain was, what was the truster's intention? It was (1) that his family should continue to live with their sister; (2) that the estate was in the end to go to the family; and (3) that his family was to be alimented. The claim for aliment was a claim of debt, and therefore it must be presumed that the truster intended to satisfy it. Now, these purposes could not be carried out in the way the truster directed; but the trustees were not to hold at all hazards till the children were of age. If there were any other method of carrying out his intention, they were to adopt it. A direction to convey in forma specifica was not inconsistent with the existence of a power of sale to satisfy debt, which this claim for aliment was— Henderson v. Somerville, June 22, 1841, 3 D. 1049. In the cases referred to by the Lord Ordinary, where authority had been refused, it was so refused because sale was expressly prohibited. In the case of Anderson, May 13, 1876, 3 Rettie 639, Lord Ardmillan stated the rule of law under which this application fell.

At advising—