Scottish Court of Session Decisions

The petitioners were the trustees acting under the trust-disposition of the late Robert Campbell of Skerrington, dated 4th and recorded 8th July 1863, by which, on the narrative that he had a desire to promote the education and religious instruction of children of the poorest class belonging to the Roman Catholic Church, of which Church he was a member, he disponed to his trustees certain buildings in Edinburgh—“Declaring always, as it is hereby expressly provided and declared, that these presents are granted to the trustees herein named and their foresaids in trust always for the Roman Catholic Church or congregations in Edinburgh and its vicinity, and for the purpose following — That is to say, the said trustees shall hold and maintain in all time coming the subjects hereby disponed, now converted into a school, as a Roman Catholic girls' school, which shall include an infant department, the children of which infant department shall include boys of the usual age admitted into infant schools: Declaring, as it is hereby specially provided and declared, that the said purpose is an express condition and stipulation of these presents, and that such purpose, condition, and stipulation shall, in all future transmissions of the subjects hereby disponed to be made to the trustees to be assumed as aforesaid, be fully inserted or validly referred to in terms of law: Declaring further, that if the said purpose, condition, and stipulation are not inserted in any disposition or other writing transmitting the said subjects, or validly referred to as aforesaid, or if the said purpose, condition, and stipulation shall not be observed in the use and occupancy of said subjects, it shall be in the power of the disponer or his heirs to declare this disposition and all that has followed thereon null and void, and of no avail, force, or effect whatever, without any declarator or other process of law to that effect, it being hereby declared that these presents are expressly granted under said condition and stipulation, and no otherwise: And it is also hereby further provided and declared that the subjects above disponed, and now converted into a school as aforesaid, shall in all time coming be designed and called by the name of ‘St Anne's Catholic School, which school shall in all time coming be under the direction and control of the Roman Catholic bishop or Vicar-Apostolic officially in the Eastern District of Scotland for the time, or those delegated by him for that purpose for the time being.” No power of sale was given to the trustees.

After the buildings so conveyed had been used for a considerable number of years for the purposes and in the manner provided by the trust-deed, it was found impossible to carry on the school in them any longer. The petitioners accordingly, with the consent of the truster's heir-at-law, made this application to sell the subjects, proceeding under section 3d of “The Trusts (Scotland) Act 1867 (30 and 31 Vict. c. 97), which provided—“It shall be competent to the Court of Session, on the petition of the trustees under any trust-deed, to grant authority to the trustees to do any of the following acts on being satisfied that the same is expedient for the execution of the trust, and not inconsistent with the intention thereof; and the Court shall determine all questions of expenses in relation to such applications; and where it shall be of opinion that the expense of any such application should not be charged against the trust-estate, it shall so find in disposing of the application and the first of the acts so to be authorised was “To sell the trust-estate or any part of it.”

The petition set forth that “The accommodation is insufficient for the number of children attending the school, and the building cannot be enlarged upon its present site. It is, moreover, built close up to a large and high tenement, which interferes with its proper ventilation, and the teachers complain of its being unhealthy. The premises are so unsuitable for the school that the Education Department have intimated to the managers of the school that unless better premises are provided the Government grant will be with drawn.” In these circumstances the petitioners prayed the Court” to grant authority to the petitioners, as trustees foresaid, and the survivor of them, and their successors in office, to sell all and whole the trust subjects before described, and that either by public roup or private bargain, and to grant and deliver in favour of the purchaser or purchasers a valid disposition, or such other deed or deeds of convey ance as may be necessary for completing his or their title to the said subjects, and containing all the usual and necessary clauses, and also all other deeds that may be requisite and necessary for carrying into effect the foresaid purpose; and to authorise the petitioners to pay the expenses of and attending this application, and of the procedure to follow hereon, and of the sale, and titles to be granted by the petitioners out of the price to be received by them from the sale of the said subjects; and to apply the balance of the said price in payment pro tanto of the price of the new feu acquired by the petitioners, and of erecting the school buildings to be erected thereon in place of and in substitution for the present school, and to decern; or to do further or otherwise

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in the premises as to your Lordships may seem fit.”

The Lord Ordinary ( Adam), after a remit for inquiry into the facts and circumstances of the case, pronounced an interlocutor refusing the prayer of the petition, but authorising the petitioners to charge the expenses against the trust-estate. He added this note:—

“ Note.—It is to be kept in view that the Court is not dealing with the case of granting powers to a factor or other officer of Court. The Court can only grant or refuse power to sell. If power to sell shall be granted, the Court has nothing to do with the application of the price. It is beyond the province of the Court to see that the price is invested in the purchase of other subjects for the purpose of carrying out the intentions of the truster, as is suggested in this case.

The application is presented under the 3d section of the Trusts (Scotland) Act, 1867. The Lord Ordinary is satisfied that it would be expedient that the power of sale craved should be granted, but he thinks that to do so would be inconsistent with the intention of the trust.

By the trust-disposition the trustees are directed to ‘hold and maintain in all time coming the subjects hereby disponed, now converted into a school, as a Boman Catholic girls’ school . . declaring that the said purpose is an express condition and stipulation of these presents, and that such purpose, condition, and stipulation shall in all future transmissions of the subjects hereby disponed, to be made to the trustees to be assumed as aforesaid, be fully inserted or validly referred to in terms of law. ‘It is further declared’ that the subjects above disponed, and now converted into a school as aforesaid, shall in all time coming be designed and called by the name of “St Anne's Catholic School.”

Nothing can be clearer than that it was the intention of the truster that the subjects in question should not be sold. If that be so, it appears to the Lord Ordinary that authority to sell cannot be granted under the 3d section of the Trusts Act on the ground which is relied on in this case, that it is highly expedient that the subjects should be sold in order that the school may be carried on in more suitable premises, which it is proposed to buy with the price.

The Lord Ordinary cannot grant authority to the trustees to sell in the face of the express direction of the truster that the subjects are to be held and maintained by them in all time coming as a school. The Lord Ordinary was referred to the cases of Hay's Trustees, June 13, 1873, 11 Macph. 694; Oliver's Trustees, May 13, 1876, 3 Ret. 639; Weir's Trustees, June 13, 1877, 4 Ret. 876.”

The petitioners reclaimed, and argued—(1) The case was within the 3d section of “The Trusts (Scotland) Act,” for it was admitted that the proposed sale was “expedient for the execution of the trust,” and it was “not inconsistent with the intention thereof.” That meant “not inconsistent with the main design and object of the trust”— Weir's Trustees. Now, here the main design and object was to promote “the education and religious instruction of children of the poorest class belonging to the Roman Catholic Church” by having a school for girls in Edinburgh; and the stringent clauses of the trust-disposition had no other design than to secure that the trust property should not be diverted in some other direction. But it was not the truster's object that this par ticular building should be used in all time coming as the means of carrying out his intention, no matter how unsuitable it might become for its original purpose. In Hay's Trustees and Oliver's Trustees the sale of the trust property was expressly prohibited; here there was no such prohibition. The case was within Weir's Trustees. But (2) even independently of the Trusts Act, the Court could grant authority to sell a building bequeathed for a purpose like the present, when through a change of circumstances it became unsuitable for that purpose— Johnstone v. Magistrates of Canongate and The Presbytery of Aberdeen v. Cooper. (3) As to the difficulty suggested by the Lord Ordinary regarding the application of the price, it was the intention of the petitioners to expend the price as the Court should direct, and the Court had power to direct what should be done. If necessary, the prayer of the petition would be amended.

Authorities— Weir's Trustees, June 13, 1877, 4 R. 876; Oliver's Trustees, May 13, 1876, 3 R. 639; Hay's Trustees v. Miln, June 13, 1873, 11 M. 694; Johnstone v. Magistrates of Canongate, May 30, 1804, M. 15,112; Presbytery of Aberdeen v. Cooper, March 20, 1860, 22 D. 1053.

At advising—