Scottish Court of Session Decisions

The late William Davidson of Newhall executed a trust-disposition and deed of settlement on 21st May 1860, by which he conveyed certain lands to trustees for the following purposes—“ Fifth, that the trustees shall .hold the said estates, and apply the free yearly revenue arising from the same, or such portion thereof as may be necessary, as after mentioned, for the benefit of the lawful descendants of my father the deceased Alexander Davidson, merchant, Auchtilair, either according to any minute, letter of instructions, writing, or memorandum which I may leave for their government, in so far as such minute, letter of instructions, writing, or memorandum can be legally or practically carried into effect and failing such instructions, I hereby direct and appoint my said trustees to apply the said revenue for preserving the aged and infirm among the descendants of my said father from want, or from the necessity of applying for public relief, and for obtaining for the young among the said descendants, both boys and girls, such a good, sound, plain, and useful education as will enable them to earn a livelihood for themselves— it being my desire that their religious education shall be carefully attended to, and that they shall be brought up in the principles of the Free Church of Scotland, with power also to my said trustees to maintain the young among the said descendants, either in family with their parents or otherwise, while at their education, and also during such time as they or any of them may be apprenticed by my said trustees to business, which my said trustees are hereby empowered to do; and I hereby declare that my said trustees shall not be entitled to apply any sum beyond twenty pounds sterling per annum for the benefit or relief of any one, either young or old, of said descendants, and that only while, in the judgment of my said trustees, he or she stands in need of it in supplement of his or her own exertions. Sixth, that they shall, in the event of the free yearly revenue being more than sufficient for the above purposes, accumulate whatever yearly surplus may remain, for the term of twenty-one years from the time of my death, or such other period as can legally be done according to the law of Scotland, and invest the same in heritable securities in Scotland, or in railway debentures, until an opportunity shall occur of purchasing land in Scotland, which they are hereby directed to do as soon as possible. Seventh, that they shall, after the expiry of the legal period during which the said revenue can be accumulated, divide the free yearly surplus thereof into four equal shares or parts, to be paid per stirpes to my brother John Davidson, and to my sisters Janet Davidson or King, relict of Sylvester King, Lambhillock, Kinaldie; Helen Davidson or Ferguson, spouse of William Ferguson, Backmoss, Auchnagatt; and Agnes Davidson or Anderson, spouse of James Anderson, schoolmaster, Clochcan, and their families, the legal representatives of each or all of them dying taking the share or shares that would have fallen to their deceased ancestors, share and share alike; and if my said brother John, or sisters Janet, Helen, or Agnes, die without legal issue, or if any of their families at any time become extinct, the said revenue shall be divided among the survivors, or survivor, or their families, equally, per stirpes as aforesaid; and further declaring that in the event of the whole of the descendants of my said brother John, and of my said sisters Janet, Helen, and Agnes, dying out, then and in that case my trustees shall, from year to year, divide the free yearly revenue, or surplus revenue, among charitable, educational, or religious institutions or societies, in such proportions and in such sums as they shall fix and determine.”

Mr Davidson died in December 1860, and his estate came to be administered by his trustees, who, with the exception of one of their number, had a personal interest in any surplus revenue under the sixth and seventh purposes of the trust-deed.

On 25th November 1887 the trustees received an application from Mrs Jane Davidson or Thomson, a granddaughter of the truster's father,

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in which she stated she was a widow in very poor circumstances, and unable to provide for the education of her children, of whom there were six—Jane aged sixteen, Sarah fourteen, James eleven, Elizabeth nine, Barbara seven, and Martha three years respectively. She asked for assistance out of the trust funds. The trustees offered a slump sum of 7s. 6d. a-week for the whole family, and to pay school fees for the younger children and allow them shoes. After further correspondence they offered to increase the allowance to 12s. 6d. a-week and to pay Mrs Thomson's past due rent, amounting to about £6.

Conceiving that these allowances were inadequate, Mrs Thomson and her children presented, this application to the Court craving their Lord-ships to fix allowances to the children respectively at £15 per annum for Jane and Sarah, £12 per annum for James, Elizabeth, and Barbara, and £5 per annum for Martha, or to fix such other allowances as their Lordships might think reasonable, reserving to them right to apply to the Court for alteration in the event of any change of circumstances requiring or justifying such alteration.

The petition set forth that the capital of the trust was believed to amount to over £20,000, and to yield a free annual revenue of about £600. The whole of this was, except so much as was required to meet one annuity of £20, available for the fifth and main purpose of the trust-deed. As regards the children, Sarah was engaged at work in a confection manufactory, and earned 6s. a-week at ten hours a day. Jane had no employment, but assisted her mother. They had both passed the fifth standard, but had been withdrawn from school owing to their parent's pecuniary inability to continue them there. They were desirous to obtain a good, sound, plain, useful education to make them eligible for instruction as teachers, or in the post office. The petitioners averred that the allowance offered by the trustees was wholly inadequate to the wants of the children, and that the trustees had not exercised a sound and reasonable judgment in giving the allowance, but were administering the revenue so as to divert it from the fifth to the sixth and seventh purposes, in which they were personally interested. The petitioners further stated that they had acted contrary to the directions of the truster in the fifth purpose, both in refusing reasonable allowances and in excluding the two eldest children from the benefit of the said purpose.

In their answers to the petition the trustees admitted that they had a personal interest in the surplus revenue under the seventh purpose of the trust. They, however, denied that they had endeavoured to divert the revenue from the fifth to the sixth and seventh purposes. They had endeavoured to do their best to carry out the intentions of the truster. They had all along conceded that the four youngest children were proper subjects for assistance under the fifth purpose, but they considered that the two eldest girls did not require assistance. They further submitted that the truster had constituted them to be the sole judges of the question whether an individual claiming assistance under the fifth purpose really stood in need of it; and if so, what amount should be allowed him in supplement of his own exertions, and that nothing had been stated in the petition to justify any interference with their discretion.

The Court ordered the trustees to lodge in process an abstract of the division and application of the revenue for the years 1883-87. The following state was accordingly lodged:— ference by the Court, cited

	Under 3d Purpose.	Under 5th Purpose	Under 7th Purpose	Total Revenue Divided.
Year ending 30th June 1883…..	£ 2000	£2936	£272183	£32219
Year ending 30th June 1884…..	2000	7340	616176	71016
Year ending 30th June 1885…..	2000	3300	519128	572128
Year ending 30th June 1886…..	2000	4300	535177	598177
Year ending 30th June 1887…..	2000	4890	488126	55716

The petitioners, in submitting that the facts stated in the petition disclosed a case for interference by the Court, cited Baird v.Baird's Trustees, February 24, 1872, 10 Macph. 482.

The trustees in reply cited the case of Douglas v. Douglas' Trustees, July 6, 1872, 10 Macph. 943, in support of the argument that the petition did not disclose anything like the gross dereliction or misconception of duty which alone entitled the Court to interfere with the discretion vested in the trustees. Baird's case really turned on the fact that the truster had not fixed an allowance himself, and had not provided any means for fixing it.

At advising—