Shedden's Trustee v Dykes
| Jurisdiction | Scotland |
| Judgment Date | 28 November 1913 |
| Date | 28 November 1913 |
| Docket Number | No. 14. |
| Court | Court of Session |
Lord President, Lord Johnston, Lord Mackenzie, Lord Skerrington.
TrustExercise of discretionary powersDelectus personAssumed trustee.
A testatrix by her settlement appointed two persons to be her trustees and executors (the appointment of one of them being afterwards recalled by codicil), and conveyed to them her whole estate. The trust purposes included a direction to divide the residue among such charitable institutions in Glasgow, and in such proportions as my trustees in their absolute and uncontrolled discretion shall decide. The deed was silent as to the assumption of new trustees. On the testatrix's death the sole nominated trustee accepted office and, after assuming a new trustee in virtue of the statutory power to do so, died without having taken any steps to distribute the residue.
Held on a construction of the terms of the settlement that, as there was no indication that the testatrix intended to limit the exercise of the discretionary power with regard to residue to the trustee nominated by her, that power could be validly exercised by the assumed trustee.
On 25th October 1912 a special case was presented for the opinion of the Court with reference to a question as to the powers of an assumed trustee, being the sole acting trustee under the trust-disposition and settlement of Miss Janet Shedden. William Kenneth, the trustee, was the first party to the case; Mrs Margaret Dykes, the testatrix's sole next of kin, was the second party; and the Royal Hospital for Sick Children, Glasgow, was the third party.
Miss Shedden's will, which was dated 11th February 1904, was in the following terms:I, Miss Janet Shedden, do hereby assign, dispone, and convey the whole means and estate of every description, heritable and moveable, wherever situated, that shall belong and be owing to me at the time of my decease, to Robert Scott Stewart, solicitor in Glasgow, and Andrew Stewart, solicitor in Glasgow, and the acceptor and survivor of them, as trustees and trustee for the purposes after specified; and I nominate and appoint the said Robert Scott Stewart and Andrew Stewart, and the acceptor and survivor of them, to be my executors and executor: But these presents are granted in trust always for the purposes following, videlicet:(First) I direct my trustees to pay all my just debts, sickbed and funeral expenses, and the expenses of the trust hereby created: (Second) I give and bequeath the legacies following to the following persons and others respectively, and direct my trustees to pay the same accordingly, namely:(Primo) 50 to each of my said trustees who shall accept office under these presents[Here followed a number of other pecuniary legacies]And said legacies shall all be paid as soon as possible after the lapse of six months from my decease, with interest from and after the lapse of such six months at the average rate of interest, if any, that my trustees shall have received from my estate, howsoever the same may be invested or wheresoever the same may be: And my trustees shall be the absolute judges as to what such average rate of interest is or shall be and should there be any doubt as to the respective legatees, or any of them, whom it is my intention to favour, my trustees shall be the only judges in the matter (Third) I give and bequeath the whole residue and remainder of my estate and all free proceeds thereof to my trustees, to be by them paid, divided, and distributed to and among such charitable and philanthropic societies, institutions, and objects in or connected with Glasgow, and in such sums and proportions to each, or the whole to any one of such societies, institutions, or objects, all as my trustees in their absolute and uncontrolled discretion shall decide; and I declare that the judgment and action of my trustees in such payment, division, and distribution shall be absolute and unchallengeable by or at the instance of any person or persons, or others whatsoever, and that the mere receipts of the respective secretaries, treasurers, or other officials of the respective objects that my trustees shall select as to take benefit under this present provision shall fully discharge and exonerate my trustees of all sums of money that my trustees shall actually pay bearing to be in virtue hereof: And further, I declare that I have not favoured those of my relatives, whom I might otherwise have been inclined to favour, because they have not made any attempt to show to me, nor did they attempt to show to my late sister any such affection or attention as I or she might have expected: And I empower my trustees to sell the whole or any part of my estate by public roup or private bargain, and to employ a law-agent or law-agents, who may be of my said trustees' own number, or any firm of which they or either of them may be the partners or a partner and notwithstanding that I have bequeathed to each of my said trustees who shall accept the foresaid legacy of 50, I declare that my said trustees shall have and enjoy all the immunities and privileges of gratuitous trustees
By codicil, dated 5th April 1907, Miss Shedden recalled the appointment of Robert Scott Stewart as trustee and executor under the will.
Miss Shedden died on 3rd June 1910, and Andrew Stewart accepted office as trustee and executor, and proceeded to administer the estate in terms of the settlement. By deed of assumption dated 30th September 1910, he assumed William Kenneth as a trustee under the trust-disposition and settlement, and along with him continued to administer the trust-estate. Andrew Stewart died on 29th December 1910, and thereafter William Kenneth, as the sole trustee acting under the said trust-disposition and settlement, continued the administration of the estate.
The estate left by the testatrix consisted wholly of moveables, and amounted to 6000 or thereby. After fulfilling all the trust purposes except the provision dealing with residue, there remained a sum of 3937, 1s. 2d. representing the residue of the estate. No allocation had been made by the trustees up to the date of Andrew Stewart's death, but William Kenneth by minute, dated 22nd December 1911, bearing to be in exercise of the discretionary powers conferred by the third purpose of the settlement, allocated a sum of 500 to the third party, the Royal Hospital for Sick Children, Glasgow.
A question having arisen as to right of the assumed trustee to exercise the discretionary power with regard to the residue, this special case was presented for its determination. The contention of the first and third parties was that, as Andrew Stewart had by force of statute power to assume new trustees, the new trustee assumed by him had all the powers conferred by the testatrix on the original...
To continue reading
Request your trial
-
Angus's Executrix v Batchan's Trustees
...exercised by assumed trustees." Woodard's Judicial Factor v. Woodard's Executrix, 1926 S. C. 534, overruled; Shedden's Trustee v. Dykes, 1914 S. C. 106, discussed. Mrs Anne Sievewright Batchan or Angus died on 9th October 1944, leaving a holograph will dated 30th March 1937 and two relative......
-
Paterson's Trustees v Finlay
...revoked.] The second alternative of the contentions for these claimants deserves more consideration. In Shedden's Trustee v. Dykes, 1914 S. C. 106, a testatrix by her settlement appointed two persons to be her trustees and executors (the appointment of one of them being recalled by codicil)......
-
Woodard's Judicial Factor v Woodard's Executrix
...trustees might have assumed new trustees, who would have been entitled to select or aid in the selection of charities—Shedden's Trustee, 1914 S. C. 106. (3) There is no indication in the will that the testator had communicated to the nominated trustees any wishes he had as to the particular......
-
Potter's Trustees v Allan
...at p. 837. 2 Hill's Trustees v. ThomsonSC, (1874) 2 R. 68. 3 Farwell on Powers, (3rd ed.) pp. 534 and 536. 1 Shedden's Trustees v. Dykes, 1914 S. C. 106. 2 Hill v. Burns, (1826) 2 W. & S. 3 M'Cormack v. BarberUNK, (1861) 23 D. 398, per Lord Deas, at p. 407. 4 Chambers' Trustees v. Smith, (1......