Scottish Court of Session Decisions

The late Sir John Maxwell of Pollok, Bart., died on 6th June 1865, leaving a disposition and deed of entail dated 23d July 1863, by which be entailed the estate of Pollok upon his nephew, the now deceased Sir William Stirling Maxwell (therein designed as William Stirling, Esq. of Keir), and the heirs of his body, whom failing upon the other heirs and substitutes therein specified. Of the same date he executed a trust-disposition

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and settlement, whereby—on the narrative, inter alia, that he was “desirous that the remainder of the debt affecting the said estate of Pollok should be paid up and discharged by selling or disposing of a portion of the estate to be set aside for that purpose, consisting of the lands of Pollokshields, Kinninghouse, and Mains of Cathcart, and others hereinafter disponed,” so that the estate of Pollok should “descend unburdened” to his said nephew and the other heirs of entail,—he disponed to the trustees therein named his whole estate and effects of every description, except the lands and estate of Pollok conveyed by the said deed of entail, and particularly the lands of Pollokshields, Kinninghouse, and Mains of Cathcart above mentioned, and also certain other lands belonging to him, adjacent to, but not forming part of, the said old estate of Pollok, and also various houses and others in and about Pollokshaws.

The said trust-disposition and settlement provided—“My said trustees shall, out of the proceeds of the said lands of Pollokshields, Kinninghouse, and Mains of Cathcart, and others primo above conveyed, pay off the remainder of the said heritable debt affecting the estate of Pollok, and interest thereon, and shall have full power to sell or feu the whole of these lands, or such parts thereof as they shall in their discretion think fit for paying off the said debt, and that by public roup or private bargain; and they shall procure valid discharges of the whole debt and all interest due thereon, and see the same properly recorded, so that the entailed estate may be entirely freed and disburdened of any claim therefor; and if any part of the said lands shall remain unsold after the whole debt is thus paid off and discharged, then my said trustees shall entail the same upon the same series of heirs, and under the same burdens, conditions, prohibitions, reservations, provisions, and declarations as are contained in the foresaid disposition and deed of entail. But if my said trustees shall, in the exercise of their discretion as aforesaid, have sold more land than turns out to be necessary for paying off the said debt, then the balance of the price or prices which may be in their hands shall form part of my general trust-estate, conveyed by and to be managed under this deed.”

The trustees were further directed to “convey or pay over the whole free residue of the trust estate, if any, to the said William Stirling and his heirs and assignees.”

Before his death the said Sir John Maxwell had begun to feu out the lands of Pollokshields and Kinninghouse on an extensive scale, according to a plan prepared for that purpose, and had feued out the whole, or nearly the whole, of the lands of Kinninghouse and a considerable part of the lands of Pollokshields. On his death, his trustees, of whom the said Sir William Stirling-Maxwell was one, entered on the administration and management of the estate, and in virtue of the powers conferred on them by the trust-deed, and in execution of the trust, they continued the system of feuing already begun. They sold the feu-duties of the lands of Kinninghouse and continued the feuing of Pollokshields, and out of the proceeds of these estates they had succeeded, before Sir William Stirling-Maxwell's death on 15th January 1878, in paying off the whole debts affecting the said entailed estate of Pollok, which had amounted at the time of Sir John's death to upwards of £67,000. They thereafter executed a deed of entail, dated 22d June and recorded 2d July 1880, of the remainder of the above lands and of the Mains of Cathcart and others, in terms of the directions of the said trust-deed, in favour of Sir John Maxwell Stirling-Maxwell, eldest son of the late Sir William Stirling-Maxwell, and the heirs whomsoever of his body, whom failing, the heirs whomsoever of the body of the late Sir William Stirling-Maxwell, whom failing the other heirs therein specified. In carrying out the feuing plan of Pollokshields, the trustees formed sewers, drains, and streets, and expended large sums of money thereon. During the lifetime of Sir William Stirling-Maxwell, nearly the entire income from the lands mentioned in the second purpose of the said trust-deed was expended in this way. The feu-contracts proceeded on a method whereby when feus were given off, each feuar was charged with a proportion of the expense of forming the streets, drains, and sewers, in proportion to the extent of his feu.

Sir William Stirling-Maxwell died on 15th January 1878, and his executry estate fell to be administered in the Court of Chancery, in England. The present case was adjusted in terms of an order of the Vice-Chancellor in the said Court, and remitted by him for the opinion of the Court of Session, in terms of the Act 22 and 23 Vict. c. 63. The parties to the case were (1) the executors of the said Sir William Stirling-Maxwell; (2) his eldest son, Sir John Stirling-Maxwell, a minor, and his guardian-nominate; and (3) his second son Archibald Stirling-Maxwell, and his guardian-nominate.

The questions for the opinion of the Court were:—“(1) Whether the sums received and to be received from time to time from feuars, as aforesaid, in respect of the foresaid streets, drains, and sewers, form part of the executry estate of the said Sir William Stirling-Maxwell? (2) Or whether the said sums belong to the heir of entail in possession of the estate of Pollok at the time when the said sums became payable?”

The first parties argued—The sums received and to be received from feuars in respect of the formation of said streets and drains should be paid to Sir William's executors. If Sir William had lived for a few years longer they would have fallen in to him as heir of entail in possession, and should now be paid to his personal representatives, and not to his successor in the entailed estates. The trustees were directed to sell or dispose of the lands in question until the entailed estate was by said sale or disposal cleared of debt, and then to entail the remainder of said lands. There was no machinery in the deed for a continuing trust. The trustees therefore ought to have acted with all convenient speed, and they had no power to spend the income of the said lands on the formation of streets and drains, to the prejudice of Sir William— Stair v. Stair's Trustees, June 19, 1827, 2 W. & S. 614; Gilmour v. Gilmour's Trustees, Nov. 22, 1855, 18 D. 78. The measure of Sir William's loss was the £15,000 in question.

The second parties replied—The trustees had acted within their powers. The formation of the streets and drains, &c., was an ordinary and necessary act of trust administration. The trustees had right so to spend the income, as

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“proceeds” of said lands. If they erred, they increased the entailed estate in value, though they might have diminished it in extent. The sums as they fell in from feuars should be paid to the heir of entail in possession for the time.

The Lords, after making avizandum, and without delivering opinions, pronounced the following judgment:—

“The Lords of the First Division having considered the petition for Thomas Robert Brook Leslie Melville Cartwright and others, with the Case presented for the opinion of this Court, in virtue of an order pronounced by the High Court of Justice, Chancery Division, in England, on the 4th February 1882, under the authority of the Statute 22 and 23 Vict. cap. 63, and heard counsel for the executors of the late Sir William Stirling Maxwell, Baronet, petitioners, and also for Sir John Stirling Maxwell, Baronet, and his curators, petitioners, make answer to the questions of law submitted for the opinion of this Court as follows: They answer the first question in the negative, and the second question in the affirmative.”