Scottish Court of Session Decisions

Mr Drew was in 1861 appointed judicial-factor on the estate of the late Robert Lawrie, Esquire, residing at Whitburn, upon the failure of the trustees under his settlement to accept office. The deceased left a trust-disposition and relative letter of instructions, both dated 20th December 1851, and he added thereto three codicils, dated respectively 2d December 1862, 28th October 1854, and 23d May 1857. The residue of the estate was appointed to be divided upon the lapse of fifteen years from the date of the letter of instruction, that is, upon 20th December 1866. The factor, in 1863, presented a petition for instructions relative to the disposal of the revenue of the estate and of a sum of £2000, referred to in the codicil to be afterwards noticed. Lord Barcaple, then Junior Lord Ordinary, gave the required instructions, in terms of an agreement into which the whole parties interested had entered, relative to the revenue, and quoad ultra superseded consideration of the petition. The factor now applied by Note lodged with Lord Mure, Junior Ordinary, for directions relative to the disposal of the £2000 under the following clause in the codicil of 23d May 1857:—“The said trustees, as soon after my death as they shall see convenient, and after provision has been made for the different legatees and legacies before mentioned, unless they see cause to the contrary, may invest in government stock or otherwise the sum of £2000 sterling, the interests or profits of which shall be drawn by my daughters or their husbands; but the stock shall be held in the name of the trustees for the benefit of my daughters and their children, should their mother predecease them, or to the survivor of my said daughters failing issue.” The factor stated that he did not consider himself to have the discretionary power conferred upon the trustees not to make this investment; but that if he had any discretion in the matter, he considered the investment inexpedient. He prayed the Court to find that the direction given to the trustees in the codicil was permissive merely, to be carried into effect only if the trustees saw fit, and that by their non-acceptance of office this permissive power had lapsed, and the investment was not to be made. Or otherwise he requested such instructions as to the terms of the investment as the Court might see fit. He stated that his reason for now moving in the petition was, that he had executed the trust except as regarded the said investment, and that he wished to wind up the estate and obtain his discharge. Intimation of this Note was ordered to the truster's daughters, who were also the residuary legatees. One of them was married five years ago, but there were no children of the marriage. These ladies, along with the husband of the married daughter, returned a Note to the effect that they concurred with the factor in thinking no investment should be made. The petition was reported to the Second Division by Lord Mure, who referred to the case of Hepburn, 19th July 1866, 4 M., 1089.