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Sir Alexander Dick of Prestonfield v. Mrs Ferguson and her Children
Date: 22 January 1758 Case No. No 167.
The Lords found a trust lapsed by the non-acceptance of the trustees; and, as the deed conferred a diseretionary power, the Lords refused to exercise themselves, that power
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Dame Janet Dick, Lady Prestonfield, executed, December 1751, a settlement of considerable funds to Sir John Cunningham her eldest son, and Anne Cunningham her eldest daughter, and the survivor, as trustees for the ends and purposes following; 1mo, The trustees are appointed to add and join together the subjects disponed, so as to make up a total of L. 6000 Sterling, to be lent out upon land or other sufficient security; 2do, They are appointed to apply and bestow the yearly interest toward the education and support of such of the granter's descendants as should happen to be in want, or stand in need thereof; and that at the discretion of the trustees; 3tio, Failing descendants, the capital is to return to her nearest heirs. This deed being whimsical and irrational, the trustees refused to accept. A process for reducing the settlement was brought by the heir at law, in which were called all the descendants in being of Dame Janet Dick. None of them made opposition but Mrs Fergusson for herself and children. Several grounds of reduction were insisted on, chiefly the non-acceptance of the trustees. And it was urged, That the present event is a casus incogitatus, for which there is no provision made in the settlement. The deed is at an end by the common law; for it supposes the acceptance of the trustees, and there are no means prescribed to carry it on independent of them. The matter then resolves into this, Whether this Court, as a court of equity, ought to supply the defect? The answer to this question is obvious. Seeing the settlement has fallen at common law, and that the subjects contained in the settlement belong to the nearest heirs, it never can be equitable to deprive them of their right; especially to support a whimsical intention in favour of remote descendants, who possibly may never be in want, and never have occasion for the money.
2do, The defender has no proper interest to oppose this reduction. The settlement leaves the distribution entirely upon the discretion of the trustees; and, therefore, suppose the trustees had accepted, no descendant of Dame Janet Dick could have a claim in law for any sum out of the trust-subject. If so, they cannot, by the repudiation of the trustees, qualify any loss or lesion that can be regarded in a court of justice.
'The Lords found the deed ineffectual by the non-acceptance of the trustees.' See Trust.
