Woodard's Judicial Factor v Woodard's Executrix
| Jurisdiction | Scotland |
| Judgment Date | 02 March 1926 |
| Date | 02 March 1926 |
| Docket Number | No. 54. |
| Court | Court of Session |
Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Trust—Distribution of estate—Exercise of discretionary powers by assumed trustees—Power to select objects of bequest conferred on nominated trustees— Refusal of trustees to act—Appointment of judicial factor—Competency of exercise of power by judicial factor.
A testator by holograph will appointed two persons as his trustees, and, after providing for certain legacies, he directed that the remainder of his estate should be invested as ‘my trustees’ may direct, and the interest paid to his son. He further directed that the principal sum invested for his son should remain until the son's children reached majority, and, in the event of no children, should be disposed of to charities‘as my trustees may think best.’ The will did not expressly confer a power of assuming new trustees. The trustees named declined to accept office, and a judicial factor was appointed on the trust-estate. The son having died without issue,
Held (1) that the discretionary powers conferred by the will were not personal to the individuals nominated by the testator as trustees; and (2) that the judicial factor could, at his own hand, distribute the residue of the estate among charities as he thought best, in respect that, in virtue of the provisions of the Trusts (Scotland) Act, 1921, the judicial factor was a trustee within the meaning of that Act.
Robbie's Judicial Factor v. MacraeSC, (1893) 20 R. 358, distinguished.
Charles John Woodard died on 6th August 1918, predeceased by his wife and survived by one child, Frank Robert Woodard.
He left a holograph will in the following terms:—‘This is my last will and testament. I request that—One hundred pounds to my stepsister, Mrs Hunter of West St., Wallsend-on-Tyne, be paid. One hundred pounds to my daughter-in-law, Mrs F. Woodard, be paid. Remainder to be invested as my trustees may direct, and the interest paid to my son, F. R. Woodard. I appoint as my trustees Mr George Gray and Mr George Tod, of Currie & Co., Limited, to whom shall be given twenty pounds (£20) each for their services. The principal sum invested for my son to remain until his children reach the age of twenty-one. In the event of no children the principal sum to be disposed of to charities as my trustees may think best.’
The persons nominated as trustees by the testator declined office, and Robert Cockburn Millar, C.A., was appointed judicial factor on the estate. Frank Robert Woodard, the testator's son, died without issue on 17th January 1925. He was survived by his wife, to whom he bequeathed all his personal effects and money, and she was appointed executrix-dative of her husband.
A question having arisen as to whether the estate of Charles John Woodard then in the hands of the judicial factor* fell to be
divided among charities as directed by his will, a special case was presented on 23rd May 1925 for the opinion and judgment of the Court. The judicial factor on Charles John Woodard's estate was the first party, and Frank Robert Woodard's widow and executrix-dative was the second party.
The first party maintained that the direction by the testator to divide the residue of his estate among charities had not failed in consequence of the declinature of the persons nominated as trustees to accept office, and that he was entitled, at his own hand or under the supervision of the Court, to divide the funds. Alternatively, he was prepared to apply to the Court for authority to resign, and for the appointment of trustees to exercise the power of division among charities.
The second party maintained that the bequest to charities had lapsed through the declinature of office by the trustees to whom the power of selection was delegated; that all the courses suggested by the first party were contrary to the directions of the testator, and illegal; that the estate had, accordingly, vested in Frank Robert Woodard as his father's next of kin, and now fell to be made over to the second party as her husband's executrix.
The questions of law were:—‘I. Has the direction by the said Charles John Woodard to divide the residue of his estate among charities failed in consequence of (a) the declinature of the persons nominated in his will as trustees to accept office, and (b) the appointment of the first party as judicial factor on the estate? or II. May the said direction still be executed (a) by the first party (1) at his own hand, or (2) acting on the direction or subject to the supervision of the Court; or (b) by new trustees appointed by the Court on his resignation, and, if so, in which of said ways?’
The case was heard before the Second Division on 23rd February 1926.
Argued for the first party;—There was nothing in the will to indicate an intention that the powers conferred should be exercised exclusively by the trustees therein named. It was evident from its terms that the testator had in contemplation, not an immediate distribution of his estate, but a continuing trust.1 The assumption of new trustees by those named was not prohibited,2 and there was nothing to suggest any special reason for the selection of the persons nominated. Further, at the end of the will, the testator merely referred to ‘my trustees’; not to‘my said trustees,’ a phrase which would have been more apt to indicate delectus personæ. In these particulars the position here was clearly distinguishable from that in the case of Robbie's Judicial FactorSC.3 There, as also in Laurie v. BrownUNK,4 the estate fell to be distributed immediately, and the intention of the testator as to the persons nominated was much more clearly expressed than here. It could not therefore be maintained that the terms of this settlement gave any indication of delectus personæ with reference to the persons who were to exercise the discretionary powers conferred by the testator. The argument
for the second party involved reading into the will something which would deprive it of effect. If there was no delectus personæ, the case of Shedden's Trustee v. Dykes1 applied. In that case it was decided that, where the exercise of a discretionary power was not limited to the trustees nominated, it could be validly exercised by assumed trustees. Here the first party, in his capacity as judicial factor, was a trustee within the meaning of section 2 of the Trusts (Scotland) Act, 1921,2 and, with respect to administration of the estate, was in the same position as trustees nominated, assumed, or appointed. That being so, he would be entitled to exercise his own discretion in selecting the charities. If, however, that course was not approved by the Court, then he was prepared to present a petition for authority to divide the funds under supervision of the Court3; or, alternatively, to apply for his own discharge in order that trustees should be appointed for this purpose.4
Argued for the second party;—The bequest to charities had lapsed on the declinature of the trustees to accept office. When, as here, the testamentary deed contained no power to assume new trustees, and conferred on the original trustees an unrestricted power to select the charities to be benefited, there was a strong presumption that this wide power was conferred only on the persons selected by the testator himself. This presumption of a delectus personæ, moreover, was strengthened by the fact that the last object of the gift was not an heir but charities.5 In such circumstances the Court would not authorise the exercise of this discretion by a judicial factor or an assumed trustee. A distinction was recognised between ordinary powers of administration and powers of such wide discretion as were here conferred.6 With the possible exception of Miln's TrusteesUNK,7 there was no case in which a trustee appointed by the Court had been permitted to exercise discretionary powers. A judicial factor was in quite a different position from a trustee selected by the testator or even an assumed trustee, each of whom exercised his powers in virtue of directions. A judicial factor...
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Angus's Executrix v Batchan's Trustees
...conferred on nominated trustees personally, it may be 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......