Harris's Trustees Petitioners [1919] ScotLR 294 (18 March 1919)

Harris's Trustees Petitioners [1919] ScotLR 294 (18 March 1919)

The Court, by majority, held that as the trust was an English trust, the testator was domiciled in England, and the English court had ordered the sale as expedient for the beneficiaries, the Scottish Court should exercise its auxiliary jurisdiction to grant the trustees power to sell the Scottish estate, notwithstanding the express prohibition in the will, in order to effectuate the English court's order and facilitate the due administration of the trust under English law.

Citation
[1919] ScotLR 294
Parties
Petitioners: Percy Cormack Searle and Florence Ethel Cartier Harris or Searle as trustees under the will of Henry William Harris
Jurisdiction
Scotland
Judgment Date
18 March 1919
Procedural Posture
Petition to the Nobile Officium of the Court of Session / Final Judgment
Outcome
Petition granted (by majority)
Legal Topics
Jurisdiction Over Foreign Trusts, Sale of Heritable Property by Foreign Trustees, Auxiliary Jurisdiction of Scottish Courts, Application of Lex Situs Vs Lex Domicilii
Trusts and Estates Conflict of Laws Property Law Jurisdiction Over Foreign Trusts Sale of Heritable Property by Foreign Trustees Auxiliary Jurisdiction of Scottish Courts Application of Lex Situs Vs Lex Domicilii

Case Brief

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Parties

Percy Cormack Searle and Florence Ethel Cartier Harris or Searle as trustees under the will of Henry William Harris

Petitioners

Procedural Posture

Petition to the Nobile Officium of the Court of Session / Final Judgment

Legal Issues

  1. 1 Whether Scottish courts can authorise the sale of Scottish heritable property by English trustees where the will expressly prohibits such sale, but an English court has ordered it as expedient for beneficiaries
  2. 2 Whether the law of the situs (Scotland) or the law of the domicile (England) governs the powers of trustees regarding Scottish land

Ratio Decidendi

The Court, by majority, held that as the trust was an English trust, the testator was domiciled in England, and the English court had ordered the sale as expedient for the beneficiaries, the Scottish Court should exercise its auxiliary jurisdiction to grant the trustees power to sell the Scottish estate, notwithstanding the express prohibition in the will, in order to effectuate the English court's order and facilitate the due administration of the trust under English law.

Court Disposition

Petition granted (by majority)

Orders

  • Petitioners as trustees granted power and authority to sell and dispose of the lands of Easter and Wester Cairdneys or Cairnies, with the mill thereof, in accordance with the order of the English High Court.