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In Re Montagu’s Settlement Trusts Notes

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IN RE MONTAGU'S SETTLEMENT TRUSTS FACTS Under cl 14(B) of a settlement made in 1923 the future tenth Duke of Manchester assigned to the trustees of the settlement all chattels to which he was entitled in remainder after the death of the ninth duke, who was then still alive, to hold upon trust after the death of the ninth duke and to select and make an inventory of such of the chattels as the trustees in their absolute discretion considered suitable for inclusion in the settlement as heirlooms and to hold the residue, if any, in trust for the tenth duke absolutely. The ninth duke died in 1947 and was succeeded by the tenth duke but no selection of heirlooms or inventory was ever made by the trustees. Although the tenth duke's solicitor was aware of the effect of cl 14(B) of the settlement, all the settled chattels were treated as being the absolute property of the tenth duke and were either released to him by the trustees or with the trustees' assent were taken by him or sold by him, the proceeds being kept by him. After the tenth duke's death in 1977 the eleventh duke brought an action against the executor of the tenth duke's will and the surviving trustees of the 1923 settlement alleging, inter alia, that the trustees had acted in breach of trust in failing to make any selection and inventory of heirlooms and in releasing all the chattels to the tenth duke and claiming that the tenth duke had become a constructive trustee of the settled chattels. The scheme under the 1923 settlement was this: The general scheme of these three paragraphs seems clear enough. First, under para (A) provision was made for wiping the slate clean as regards any missing chattels; and for this a determinate period was laid down, namely from 23 December 1923 until 9 February 1948, which was one year after the death of the ninth duke. Second, under paras (B) and (C) there was the trust for carrying out a selection and making an inventory or inventories of the chattels which were to be heirlooms, and for this no fixed period was prescribed. It was to be done 'after the death of the present Duke', though if and so far as it might be found 'practicable and convenient' it was to be done during the lifetime of that duke. Interpretation of Clause 14B by the Court: From the wording of cl 14(B) I think it is clear that a fiduciary duty was imposed on the trustees: they were not merely given a power. Furthermore, that duty was first to make a selection of such of the chattels as they considered suitable for being included in the settlement, and second to make an inventory or inventories of those chattels. Only when this duty had been performed (or at least the selection had been made, even if no inventory of the 'selected chattels' was

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