Scottish Court of Session Decisions

The deceased James Ainslie, of 11 Melville Crescent, Edinburgh, died on 25th October 1880. He left a holograph testament dated 7th March 1878, by which he nominated certain parties mentioned therein to be his “executors.” He directed them to pay annually to his niece till death or marriage, payable half-yearly, £120, and to make payment of another annuity, which lapsed by the annuitant predeceasing him; further, “to divide whatever sum my estate may yield annually between my dear wife Narcissa Ainslie, and my dear niece Jane Suffield Ainslie, thus—to the former, say seven-tenths (say 7 10th), and to the latter three-tenths (say 3 10th), payable half-yearly, the survivor to have the liferent of the whole estate, and at her death my accounts to be closed at as early a date as practicable, and the proceeds divided into five equal shares, to be apportioned” among five persons named. The will further provided that his house, stable, and fixtures should be sold soon after his death, but not before it suited his wife's convenience. He further directed his executors to pay out of his estate legacy and other duties on the bequests to his wife and niece, “and also the whole expenses attending the executory and the annual expenses of management. I direct my executors either to retain and hold the various securities and investments on which my means and estate may be invested at my death, it being my wish, without, however, being imperative on my executors, that the investments and securities chosen by me should remain undisturbed as far as possible, or to realise the same or such part thereof as they may deem necessary or expedient, or to reinvest the same in such way and manner, and on such securities, heritable or personal, as they may deem best, including stock, funds, or securities of the Government of lndia, debentures or debenture stock, preferential or guaranteed stock, declaring that my executors shall not be liable for any loss that may arise from their retaining and holding any securities or investments on which my means and estate may be invested at the time of my death.” He left to each of his executors a legacy of £100.

All the four executors survived the testator and accepted office. One of them died in 1885, and of the survivors two were in delicate health. The remaining executrix was the niece above named. The residue under their charge amounted to £32,000.

In these circumstances the two executors, being a majority, desired to assume certain persons to act along with them in the administration of the testator's estate. A question was raised whether such assumption was competent, and the present Special Case was accordingly presented to have the opinion and judgment of the Court upon this question. The first parties were the majority of the executors. The second party was Miss Jane Suffield Ainslie, the niece.

The first parties maintained (1) that although called executors by the testator, yet the effect of the provisions of the will was to put them in the position, and invest them with the powers of trustees, including the power of assumption conferred by the Trusts Act 1861, and (2) that the majority had that power.

The second party maintained (1) that as the testator had only nominated “executors” by his will, they were not trustees within the meaning of the statute, and (2) in any view, that they could not assume unless there was unanimity.

The Act 24 and 25 Vict. c. 84, sec. 1, provides that “all trusts constituted by virtue of any deed or local Act of Parliament under which gratuitous trustees are nominated, shall be held to include the following provisions, unless the contrary be expressed—that is to say, power to such trustee, if there be only one, or to the trustees so nominated, or a quorum of them, to assume new trustees;” and sec. 3 provides that “a gratuitous trustee shall, for the purposes of this Act, be held to be any trustee who receives no pecuniary or valuable consideration for performing the duties of a trustee, and is under no obligation without special acceptance of such office to discharge the duties of trustee.”

The questions upon which the opinion and judgment of the Court were asked, were—“(1) “Whether, on a sound construction of the said last will and testament, the first and second parties are entitled to exercise the powers of assumption conferred on trustees under the terms of the Act 24 and 25 Vict. c. 84, sec. 1? (2) Whether, if the first question be answered in the affirmative, such assumption can be made by a majority of the first and second parties?”

Argued for the first parties—The will being a holograph will the word “executors” must not be taken in too technical a sense; the whole scope of the deed showed that the parties were to act more as trustees than as executors. They were to hold the estate during two lives. They were to deal with heritage, and they were to manage a continuing trust. There was nothing in the statute opposed to the present application.

Authorities—Ersk. ii. 2, 3; Jameson v. Clark, January 24, 1872, 10 Macph. 399; Tochetti v. City of Glasgow Bank,

Page: 165↓

March 7, 1879, 6 R. 789; Lewin on Trusts (6th ed.), 555.

Argued for the second party—An executor was not by any means the same as a trustee. A trustee was not an executor until after confirmation, and recent statutes carefully kept up the distinction. Had the testator desired to equip the parties with the powers of trustees he could easily have done so, and the Court would not, without good cause shown, do this for him.

Authorities—Ersk. iii. 9, 27; Juridical Styles (last ed.), vol. ii. p. 648; Macleod's Trustees v. M'Leod, February 28, 1875, 2 R. 481; Urquhart v. Dewar, June 13, 1879, 6 R. 1026; M'Leod's Trustees v. M'Luckie, June 28, 1883, 10 R. 1056.

At advising—