Scottish Court of Session Decisions

Subject_1 TRUST.

Francis Sinclair, son to Thomas Sinclair, Brother to the Laird of Roslin,
v.
Francis Maxwell of Tinwall

Date: 6 January 1708
Case No. No. 25.

Trustee bound to communicate advantages acquired in the trust affairs.

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Isobel Wauchop having right to a bond of 1,900 merks, bearing annual-rent, she left the same in legacy to Francis Maxwell of Tinwall, who had been employed as a friend by Thomas Sinclair, husband to Elizabeth Wauchop, the said Isobel's heir, to influence Isobel to dispose of that money in favours of her sister. Tinwall sometime after the testatrix's death, wrote to Thomas Sinclair, “That he had answered his commands so far as in him lay, in enjoining her to dispose of what she had to his wife, which the defunct refused; and that, rather than another should get it, he took a right in his own favours, but to show that what he did was purely for Francis Sinclair's profit, he promised him repetition of the same whenever he passed his minor years; always reserving the property to himself, in case he Francis, either disobliged his father Thomas, or took any irregular or unadvised shifts.” Francis Sinclair raised upon the foresaid letter a declarator of his right to the 1,900 merks bond against Tinwall.

Alleged for the defender: That quoad the principal sum non facit vim; but seeing repetition is only promised at Francis Sinclair's majority, Tinwall should have the sum till that time, and cannot be debarred from uplifting thereof; especially considering, that Francis' right is clogged with several conditions which may happen not to exist; and in the event of their not existence, Tinwall reserves the property to himself.

Answered for the pursuer: That the defender was previously obliged by the trust, to take the right for the pursuer's behoof; and in all events, the annual-rents are presently due to him, the conditions being adjected only to the fee and property.

The Lords found that both the principal sums and annual-rents ought to be secured to Francis Sinclair at his majority; and preferred Tinwall, he finding sufficient caution to make both principal and annual-rents, in so far as he uplifts the same, forthcoming to the said Francis at his majority, upon the conditions contained in the missive; but that Tinwall should he free in case Francis Sinclair either disoblige his father, or take any irregular courses, or in case he die before he be major.

Forbes, p. 218.