'Tr. v. Sheppard

3, 1885

one expression which Lord Fullerton used, and which dwells in my memory, was, "The question is, Did the truster or the testator intend the person to take land or money?" Now, that is a question of intention, and I know of no principle other than that which Lord Mure has announced, namely, that you can only gather the intention of the testator from the language used by him who is the maker of the deed. That is not a principle established by Buchanan v. Angus; it is a question of intention-the intention being to be collected from the language of the deed expressive of it. But there authority is not of the highest importance, because the principle which alone authority can establish is clear enough; the difficulty is in the application of it. How are you to collect the intention? It is just the impression made upon the judicial mind by the language employed. If the testator in so many words directs the executors of his will to sell the heritage and to divide the price there is no difficulty about the intention there. He means that the price is to be divided. His intention is expressed in language which admits of no mistake, and therefore, although there has been no sale, yet the testator meant his beneficiaries to get money and not land. If one of them dies without getting anything, and the question is what his successors will take, their successors are his successors in money, and not his successors in land, because the testator meant him to get money and not land. But where there is not that express direction, may you not satisfactorily, and therefore safely-for we have no other test of safety except what is satisfactory to the judicial mind-collect the intention of the testator to the same effect? He gives a power of sale, and the whole scope and import of his will are such that you are satisfied of the intention that the power be exercised and money and not land be divided. If that is your conclusion on the language used, then you would answer the question put by Lord Fullerton by saying that he intended the object of his bounty to take not land but money. That is constructive conversion. according to his intention that they should have money and not land, and that if one of them died without getting anything the rights of his successors should be governed accordingly. Now, as I have said, there is no new principle there; it is as old as the hills-at least as old as this branch of the law. There is nothing established by Buchanan v. Angus on this subject at all. You would not readily imply that he intended his land to be turned into money and so divided, unless he says so, but the implication will be sufficient for doing that. I noted an expression which was used several times, "indispensable to the execution of the will," but if the direction to divide and distribute among any number of beneficiaries may be executed by conveying pro indiviso, I should like to have an instance of a case in which the execution of the power of sale was indispensable to the execution of the will. I cannot conceive of that. If there are twenty children, and one shop to be divided amongst them, share and share alike, the executor of the will, to whom the estate is conveyed for the purpose, having a power of sale, and being directed to divide it amongst them, share and share alike, there are surely very few men who would not say that the sale was indispensable to the execution of the will in that case,

It was

But it may be said it was not indispensable to the execution of the will, because the direction to the trustees to divide it, share and share alike, may be executed by conveying it to the whole beneficiaries pro indiviso, and letting them divide it themselves. It is said that in that case there is nothing indispensable to the execution of the will. But I cannot come to that conclusion. I therefore collect the testator's intention, and, satisfactorily to my own mind, applying it as judicially as I can, I think he meant that the shop property here should go to his five children, but that it was his intention, not that they should have one-fifth shares, and that the heirs of those who died should have one-fifth share of the shop property, but that the whole residue should be converted into such a shape as should be divisible, and thus that the trustees should be enabled to execute his direction by making the division themselves, or enabled to put it into a lump, and say to the beneficiaries, "Now, divide it for yourselves." I think the trustees are directed to divide. I do not feel hampered by the case of Buchanan v. Angus, or by any other case, the principles, as I have said, being well established before. The principles are wellknown, the difficulty is in applying to each individual case as the individual case arises. I simply put the question to myself, "What did the testator intend? Did he intend them to take money or to take a share of house property?" I think he intended them to take money, and I am of that opinion on evidence as conclusive and satisfactory of the intention conveyed by the language used as the Court has acted upon in many other cases. Of course if there was a recent authority-a recent authority of the House of Lords-dealing with facts identical with the facts here, I should apply it. But we are not concerned with any such case; there is no such case; there are only cases establishing and illustrating the principle. The principles, as I have said, are perfectly clear, and the application of the principle to the facts of the individual case is not doubtful; therefore in the result I concur in the opinion of the Lord Justice-Clerk.

LORD CRAIGHILL-When this case was heard in the Second Division I was of opinion that there has been no constructive conversion. I am of that opinion still. (1) There was no conversion expressly directed; (2) that was not necessary for the fulfilment of the purposes obligatory on the trustees; and (3) the general tenor of the deed does not suggest that the intention of the testator was that there should be conversion, or, in other words, that the trust estate should be distributed as if all were moveable property. These are the results of my reading of the truster's settlement.

I. As to the first of these points there is no controversy. All parties are agreed that there was no express direction to convert. All that was given being authority or power "to sell and dispose of all or any portion of the said trust estate and effects." This is enough if there has

been a sale, but not enough for conversion if the power or authority to sell has not been exercised.

II. As regards the second point, it is incumbent on the third parties to show that the sale of the heritage was necessary for the fulfilment of purposes which were obligatory on the trustees. In saying this I make use of the words which in his statement of the law upon this subject were used by Lord Chancellor Westbury in moving the judgment of the House of Lords in Buchanan v. Angus. Now, what he required to be made out has, I think, not been established. There are two things which are referred to for the purpose of showing that the sale of the heritage was necessary for fulfilling the purposes of the trust, the first of which is the power given to the trustees to advance monies to beneficiaries on the credit or on account of their shares; but this power never was exercised, and consequently conversion for this purpose never became necessary in the administration of the trust. What might have been the result had money been advanced need not be determined. The fact that an event which might have resulted in conversion never occurred leaves the case where it would have been if a discretionary power to advance had not been committed to the trustees. The second of the things referred to is that the residue was to be divided in equal shares; but for this conversion was not required, as this could be effected by a disposition pro indiviso in favour of the beneficiaries--Auld v. Anderson, 4 R. 211; Duncan's Trs., 9 R. 731; and Aitken v. Munro, 10 R. 1097, are authorities upon this point. These decisions are in the wake of the judgment of Lord Westbury in Buchanan v. Angus, who says that a division to be made betwixt beneficiaries "share and share alike "are words clearly applicable to a disposition of the property when given to persons as tenants in common, that is to say, using our own law language, to a disposition of property pro indiviso.

III. On the third of the points which I have specified I am as clear as upon the others. There is no ground whatever for the inference that while a sale of heritage might not be necessary for fulfilment of trust purposes, the will of the truster, as that is to be gathered from the trust-deed, was that there should be conversion. The opposite conclusion appears to me to be the true reading of the deed. (1) That which is to be divided among the beneficiaries of the fee is the residue which was to be liferented by the widow, and that was intended to be, and in fact was, partly heritage and partly moveable property. The words of direction are that the trustees should dispone, convey, and make over for her liferent "all and sundry the residue of my means and estate, heritable and moveable, above mentioned," and what was to be liferented is the thing of which the fee was to be divided among the destined beneficiaries-at least such is my inference, for there is no direction, nor indeed anything, which suggests that between the death of the widow and the fulfilment of the direction to divide and convey the fee, the corpus of the estate was to be changed or anything whatever was to be done by which the character of that estate was to be affected. On the contrary, the direction was that if the beneficiaries had reached the age of 21 the trustees were after the death of the widow to

divide and convey "with the least possible delay." (2) There was to be, or at any rate there

might be, a "disposition" in the distribution of the truster's estate, the words of direction being that the, trustees shall divide "the whole residue of my means and estate, and dispone, convey, and make over" what is to be the subject of division. Thus heritage as well as moveables is or may be included in the division according to the contemplation of the truster. And (3) those who are to take after the death of a child or the issue of a child predeceasing the truster, are the heirs and representatives of the predeceaser. This shews that there might be a division of a child's succession into two parts, one of heritage, which would go to the heir, the other of moveables which would pass to the next-of-kin.

These considerations seem to me to exclude the inference that whether it was or was not re

quired for fulfilment of the purposes of the trust, or whether the power to sell was or was not exercised, the intention of the testator was that his estates should be divided as if there had been conversion.

Counsel for Parties of the Third Part-Solicitor-General Asher, Q. C.-Rhind. Agent-William · Officer, S.S. C.

Saturday, July 4.

FIRST DIVISION.

ROBERTSON V. WILSON. Bankruptcy Bankruptcy (Scotland) Act 1856, sec. 48-Gazette Notice-Personal Bar.

A

Sequestration was awarded in the Court of Session upon a petition presented by the bankrupt with concurrence of one of his creditors. The bankrupt failed to comply with the provisions of section 48 of the Bankruptcy (Scotland) Act 1856, in respect he did not insert the statutory notice of sequestration in the London Gazette until one day after the six days prescribed by that section. All the other provisions of section 48 were duly complied with. meeting of creditors was held, a trustee was elected, caution was found, and the trustee's appointment was confirmed. The bankrupt thereafter presented a petition in which the Court were prayed to recal the whole proceedings at and following on the meeting. This petition was founded on the failure to record the statutory notice in the London Gazette in due time. Petition refused. Andrew Ross Robertson, residing at 1 Marchmont Street, Edinburgh, with concurrence of a creditor of the amount required by the Bankruptcy Act, presented a petition for sequestration to the Lord

Ordinary on the Bills on 2d June 1885, and sequestration was awarded on that date.

On 12th June 1885 a meeting of creditors was held, when Mr D. H. Wilson, S.S. C., was duly elected trustee. Wilson having lodged the necessary bond of caution, was duly confirmed trustee on 23d June 1885.

This was a petition presented by the bankrupt without the consent of any creditor, in which he asked the Court to "supersede and recal the whole proceedings at and following upon the said meeting of creditors .. and to appoint a new meeting of the creditors. . . to elect a trustee or trustees in succession upon the sequestrated estates of the said Andrew Ross Robertson, and do the other acts provided by the said statutes."

The petition was founded upon an averment that the statutory notice of the sequestration, and of the first meeting of creditors was not published in the London Gazette within the period fixed by section 48 of the Bankruptcy (Scotland) Act 1856. The notice appeared in the London Gazette seven days after the sequestration, whereas the period prescribed by sec. 48 is six days. All the other provisions of sec. 48 were complied with.

Answers were lodged for Mr D. H. Wilson, the trustee. The petitioner appeared in person, and referred to the case of Garden and Others, July 18, 1848, 10 D. 1509.

Argued for the respondent-It was admitted that the notice had been inserted in the London Gazette one day too late. That, however, was owing to a failure on the part of the bankrupt which he was not entitled to found upon-2 Bell's Com. (7th ed.) 297, (5th ed. 285); Lang v. Glasgow Court-House Commissioners, May 26, 1871, 9 Macph. 768; Gray, February 2, 1844, 6 D. 569; Allan, June 6, 1861, 23 D. 972. There had been no prejudice to any of the creditors of the bankrupt. Section 71, which provided that the judgment of the Sheriff declaring the election of the trustee should be final, accounted for the absence of any cases directly bearing on the point.

At advising

LORD PRESIDENT-In this case sequestration of the petitioner's estates was awarded on 2nd June 1885, upon a petition by the bankrupt himself, with concurrence of a creditor of the required

amount.

The first meeting of creditors was held on the 12th of June, and it is not disputed that the proceedings at that meeting were conducted in all respects in accordance with the provisions of the 67th section, and that it was held at the time prescribed by that section. The purpose of the present application is to set aside all that was done at that meeting, and all that has followed thereon-that is to say, the election of a trustee, the finding of caution, and the confirmation of the trustee's appointment.

The ground of the application is that there has been a failure to follow the provisions of section 48 with regard to the insertion of the statutory notice of sequestration in the London Gazette. The main provisions of section 48 in regard to the registration of the sequestration in the various registers have been here strictly complied with, but the last clause is in these terms-"the

party applying for sequestration shall, within four days from the date of the deliverance awarding the sequestration (if awarded in the Court of Session), or if it is awarded by the Sheriff, within four days after a copy of the said deliverance could be received in course of post in Edinburgh, insert a notice, in the form of Schedule B hereunto annexed, in the Gazette, and also one notice in the same terms within six days from the said date in the London Gazette."

It is admitted that the insertion of the notice in the London Gazette was one day beyond the six prescribed by the Act.

The petition now before us is presented by the bankrupt alone, without the concurrence of any of his creditors. Now, if an error of this kind were complained of by one of the creditors of the bankrupt, and if it were possible for him to show that he had in any way been prejudiced by the mistake, I should not be prepared to say that we could not entertain such a complaint. But I am very clear that we cannot entertain a petition by the bankrupt founding on his own neglect and omission.

[Lord M Laren, Ordinary. FERGUSON AND OTHERS V. PAUL. Lease-Landlord and Tenant-Fixtures-Greenhouses and Conservatories-Implied Agreement.

Circumstances in which a tenant of a house and garden was allowed to remove at the ish of his lease valuable greenhouses and conservatories erected by him of substantial nature, and bedded on stone and brick foundations.

The proprietrix of a house and garden let them for five years, at a rent of £45 a-year, to a tenant who was taken bound under the lease, inter alia, "not to remove away any of the fruit trees and others in the garden, except to replace the same by others of equal quality and value." The lease was subsequently renewed for two periods of five years. The tenant, who was a great lover of flowers, on entering on the subjects removed some trees in the garden, and built in their place greenhouses and conservatories, bedded on stone and brick foundations at a cost of between £800 and £900. He used to compete successfully for prizes at flower shows, given for tulips, hyacinths, and orchids, selling the bulbs to florists, and he kept three gardeners at a cost of over £150 a-year. At the ish of the lease he removed the greenhouses, &c. In an action at the instance of the successors of the

proprietrix for the value of the erections, the Court assoilzied the defender, being of opinion, on a consideration of the evidence led, that the pursuers' author knew of and acquiesced in the defender's intention to build the greenhouses, and that there was an implied agreement that he was to be at liberty to remove them at the ish of the lease on condition of planting other trees in place of those removed-diss. Lord Rutherfurd Clark, who was of opinion that no such agreement was to be implied either from the transactions and conduct of the parties or from the nature of the tenure.

Andrew Paul, brassfounder, Edinburgh, entered into a lease, dated 2d February 1871, with Mrs Flora Henderson by which she let to him for £45 a-year, for five years, a villa, with garden,

&c., in Gilmore Place, Edinburgh. The

lease contained this clause-" And the said Andrew Paul accepts of the premises hereby let as in good tenantable order and repair, and binds and obliges himself and his foresaids to maintain and keep the same in good tenantable order and repair, at his and their own expense, during the currency of this lease, and to leave them so at the termination thereof; and the said Andrew Paul binds and obliges himself and his foresaids not to remove away any of the fruit trees and others in the garden, except to replace the same by others of equal quality and value." By two separate agreements, dated 6th July 1871 and 29th June 1875, the lease was extended for two periods of five years.

He

Paul had a great love for the culture of flowers, and especially of hyacinths and orchids. used to compete very successfully for prizes given at flower shows for hyacinths and orchids, drawing over £30 a-year for prizes. Many seedsmen purchased bulbs from him, and he spent from £150 to £200 a-year in wages to his gardeners, of whom he had three. Though occasionally selling plants he did not carry on gardening for profit. On entering possession under the lease he removed a number of fruit trees and bushes from the garden, and erected on the ground where they stood some flower-houses and conservatories at a cost of between £800 and £900; an orchid house alone, which formed part of the buildings, cost £240. The value of the house and garden was about £800, the rent being £45 a-year. The lease was to expire at Whitsunday 1886. Between May and September 1884 Paul caused the whole of the conservatories, &c., to be removed, and disposed of them for £110.

The

Thereupon this action was instituted against him by Mrs M. B. Henderson or Ferguson and others, the heirs of Mrs Henderson, who claimed the sum of £200 in compensation for their removal and as their value. They averred that the erections were chiefly of bricks with glass roofs and sides. The foundations were laid several feet deep into the ground. The whole erections were partes soli, and as such were their property. defender replied that the proprietrix had made no objections to his removing the trees; that such removal was in the contemplation of both the parties to the lease; and that it was also quite understood and agreed upon between them that he should be allowed to erect the buildings if he pleased on the ground thus made available on condition that any such were to be re

moved by him, and the trees and bushes replaced before the expiry of the lease. That he was quite willing at that date to replace any of the trees removed by him by others of equal value and quality. The erections were in no case so affixed to the ground as to become partes soli, and it was never intended by the parties to the lease that they should be permanently attached to the soil. They were not made for enhancing the beauty of the subjects, but entirely-as Mrs Henderson well knew-because of the personal and peculiar pleasure taken by the defender in the culture of flowers.

The defender averred “The greenhouses were not ordinary adjuncts to the dwelling-house, but covered very nearly the entire garden ground, and were erected by the defender with a view to the cultivation of orchids and other expensive flowering plants and shrubs, and to the exhibition of these at national and international shows, and they were of no use to anyone except for the special purpose for which they were erected. They were entirely unconnected either with the dwelling-house or with the walls enclosing the said garden, and the most of them had no stone or brick foundation whatever, but consisted merely of glazed frames resting on the ground. The others rested wholly or partially on a slight brick foundation, from which they were easily removeable, and from which they were in fact removed without any injury to the brick substructure. The greenhouse or frame first erected by the defender was brought there prior to Whitsunday 1871, while the then proprietrix was still residing in the house, and was-as she was well aware-removed from another house, of which the defender was tenant at that time."

The pursuers pleaded-"The defender having wrongously and illegally removed the flowerhouses, conservatories, and other erections as condescended on, and these being the property of the pursuers, and the pursuers having thereby suffered loss and damage to the extent condescended on, decree should be pronounced as concluded for."

The defender pleaded-"(3) The erections in question having been made by the defender for a temporary object, and not being partes soli, the defender was entitled to remove them at any time before the expiry of his lease. (4) Separatim, the defender having come under an obligation in said lease to replace all trees and others removed by him from the said garden, and it not being possible for him to fulfil this obligation without wholly removing said erections, he was bound, or at least entitled, to remove the said erections."

Proof was led, the import of which sufficiently appears from the above narrative of the facts, which were proved, and from the Lord Ordinary's note.

The Lord Ordinary (M'LAREN) pronounced this interlocutor:-"Finds that the deceased Mrs Henderson let the house and garden libelled to the defender, in the knowledge that the defender was to occupy the garden, or a considerable part thereof, with greenhouses, and in that knowledge stipulated that the ground should be restored at the expiration of the lease, and trees planted in place of such as might be removed: Finds that in these circumstances the defender was entitled

to take down the greenhouses: Finds that the greenhouses having been dissevered from the heritable estate in virtue of the obligations in the lease, the materials thereof are moveable and pertain to the defender: Therefore assoilzies the defender from the conclusions of the libel, and decerns, &c.

"Note. This is an action instituted by the proprietors of heritable subjects in Edinburgh against their tenant, claiming compensation in respect of the removal of greenhouses of considerable value which the tenant had erected for his own purposes, and which he claims as his property. The pursuers are the heirs of Mrs Flora Henderson, by whom the house and garden were let on lease to the defender. They have no personal knowledge of any understanding which may have existed between their author and the defender as to what was to be done with the greenhouses at the expiration of the lease, and they rely entirely on their legal right to the acquisition of whatever may be shown to be annexed to their heritable estate. It is unnecessary to point out that if the greenhouses had been erected by the proprietor of the house and garden they would have fallen to the heir and not to the executors. Where a proprietor of heritable estate makes a beneficial addition to the estate, the only question is, whether the thing annexed is in its nature moveable or immoveable? In such a case I see no reason to doubt that greenhouses, whether built into the ground or less securely attached to it, would be treated as immoveable subjects irrevocably annexed to the estate, and therefore destined to the heir.

"But in questions between landlord and tenant as to the removeability of fixtures other considerations enter into the decision. I do not think it is possible to lay down a rule which shall embrace all cases, but it is desirable at least to notice the elements for consideration and their relative importance.

"The points to be considered are

"(1) The mode of attachment of the fixture to the soil or heritable subject.

(2) The description of the fixture; whether it is susceptible of being taken to pieces and put together again, like an iron house or machine, or whether it is like a stone building, incapable of being removed without destruction of the subject.

"(3) The use of the fixture; whether beneficial to the heritable subject, or useful only to the tenant in his trade, occupation, or industry.

"(4) The relative values of the fixture and the heritable subject; and

"(5) The agreement (express or implied) between landlord and tenant as to the conditions on which the fixture was to be placed in or annexed to the estate.

"In the present case the first of these heads of inquiry must be answered in favour of the landlord. Under the other heads the weight of evidence and argument appears to me to be in favour of the tenant.

"1. The tenant (defender in the action) is an amateur florist, occupying a small house in Gilmore Place, Edinburgh, for which he pays a rent of £45 per annum. It is only necessary to look at the plans of the property to see that the structures which the defender erected have no relation to the value of his dwelling-house as a residence. The greenhouses were not put up by the

defender for the improvement of his house and garden as a residence, but for the purpose of enabling him to carry on the pursuit of floriculture, to which he devoted his leisure time and a large part of his savings from his business. He occasionally sold plants to nurserymen and to private purchasers. But this was only a mode of lessening the cost of the establishment incidental to his pursuit, which, as I have said, was not carried on with a view to profit. It is no part of the defender's case that his greenhouses were of a slight or temporary character. They were of the best construction, and furnished with the most substantial and approved apparatus for heating. Without going into all the particulars on this subject, which will be found in great detail in the report of the evidence, I may say that the greenhouses were substantially built, that they were bedded on stone or brick foundations, and that, so far as physical attachment to the soil is an element, I have no doubt that the greenhouses were solidly attached to the ground, and that the attachment was as complete as is possible in the case of glass structures resting on brick or stone.

"2. It is, however, a fact in the case that the greenhouses were successfully removed and put together again without much loss of material. It is also in evidence that it is not only possible, but even customary, to remove greenhouses-by taking them to pieces-from one situation to another; although some witnesses have expressed doubts whether the ordinary class of glasshouses will bear the cost of such removal. In this sense I must hold that the greenhouses were moveable, although they could only be moved by a process of cutting down, attended with some loss of material. This, I think, is all that need be said under the second head of inquiry.

3. On the third head of inquiry, the nature of the uses to which the fixture is to be put, I think the evidence is all one way.

"Viewed as an annexation to the tenement, the greenhouses were of no manner of use. They were on a scale altogether disproportionate to the size and value of the small house in Gilmore Place in which the defender resided, and it is most unlikely that any future tenant of that house would desire to make use of the greenhouses, or would be able to maintain them. Indeed, if the defender had offered to make a present of his property to the pursuers, the only thing the pursuers could have done with the houses would be to sell them for the purpose of having them taken down and removed.

"The use of the greenhouses was entirely special to the defender's pursuits, as much as if he had been a nurseryman. Any presumption that the greenhouses were put up for the benefit of the freehold is therefore displaced by the fact that the structures were of no use to the freehold, and were only useful to the defender, or to some one with the like tastes and pursuits.

"4. I do not think that we have the materials for an accurate statement of the relative values of the house and greenhouses. But the defender states that the greenhouses cost him about £700, which I suppose is not much short of the value of the dwelling-house without the ground. I should suppose that the cost of keeping up the greenhouses exceeded the defender's household expenditure.