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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell Innes's Trustees v. Mitchell Innes and Others [1911] ScotLR 241 (08 December 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0241.html Cite as: [1911] ScotLR 241, [1911] SLR 241 |
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Page: 241↓
In a special case brought by the trustees under a trust settlement and the beneficiaries interested therein, to determine whether the former had power to sell a certain heritable estate, parties were agreed that a sale would be in the best interests of the trust estate. Held that the special case was competent.
Page: 242↓
Galloway v. Campbell's Trustees, July 11, 1905, 7 F. 931, 42 S.L.R. 712, followed.
Observations ( per Lord Kinnear) on the competency of special cases where there is no real litigation between the parties.
A Special Case was presented for the opinion and judgment of the Court by George Dalziel, W.S., Edinburgh, and others, the trustees acting under the trust-disposition and settlement of the late Thomas Shairp Mitchell Innes of Phantassie, first parties, and Miss Isabella Mitchell Innes, a daughter of the truster, and the four children of Mrs Christina Mitchell Innes or Anderson, a deceased daughter of the truster, second parties.
The Case set forth, inter alia—“… The first parties are satisfied that it would be in the best interests of the trust estate to sell the estate of Phantassie, and the second parties are desirous that the first parties should do so. A question, however, has arisen as to whether the power of sale conferred by the trust-disposition and settlement extends to the estate of Phantassie, and the first parties are not prepared to sell without having the matter judicially determined; further, it is necessary to have this judicially determined in order to satisfy intending purchasers, and to enable the first parties to afford an unquestionable title to a purchaser. The first parties maintain that the general power of sale conferred on them by the trust-disposition and settlement does not extend to the estate of Phantassie, which is otherwise specifically dealt with throughout the deed. The second parties maintain that the power of sale conferred on the first parties extends to the whole trust-estate, including the estate of Phantassie, which was the only heritable estate left by the truster.”
The question of law was—“Are the first parties entitled, under the powers of sale conferred by the trust-disposition and settlement of the said Thomas Shairp Mitchell Innes, to sell the estate of Phantassie? or, otherwise, Are they entitled to do so with the consent of the beneficiaries?”
Counsel for the first parties cited Galloway v. Campbell's Trustees, July 11, 1905, 7 F. 931, 42 S.L.R. 712.
The Court answered the first branch of the question in the affirmative, and found it unnecessary to answer the second branch.
Counsel for the First Parties— Macphail, K.C.— Hon. W. Watson. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for the Second Parties— Blackburn, K.C.— Pitman. Agents— J. & F. Anderson, W.S.
