Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0146.html
Cite as: [1867] ScotLR 4_146, [1867] SLR 4_146

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SCOTTISH_SLR_Court_of_Session

Page: 146↓

Court of Session Outer House

Thursday, June 27 1867.

Lord President

4 SLR 146

Shedden and Others, Petitioners.

Subject_1Trust
Subject_2Deed of Assumption
Subject_3Sequestration of Trust-Estate
Subject_4Judicial Factor—Recal of Factory.
Facts:

A trust-estate being in the hands of a sole trustee, the Court, on the prayer of beneficiaries, sequestrated the estate, and appointed a judicial factor. Sometime thereafter the trustee executed a deed of assumption and conveyance in favour of himself and two new trustees, whereupon the beneficiaries prayed for recal of the sequestration and factory. Prayer granted by the Court in the exercise of its equitable jurisdiction.

Headnote:

Mrs M'Ewan, by trust-disposition and settlement, conveyed her property to trustees. for behoof of her children. On the death of the truster, John Kennedy Donald, as the sole surviving and accepting trustee under the settlement, entered upon the possession and management of the estate. He continued to intromit with the estate until 1862, when he became insolvent, and was rendered notour bankrupt. He had at that time funds of the estate in his possession. On his refusal to assume new trustees at the request of two of the beneficiaries, and on an application to the Court, the Court sequestrated the trust-estate, and appointed Mr. W. J. Carswell judicial factor thereon. Thereafter the judicial factor managed the estate. On 8th March 1865, Mr Donald, as sole surviving trustee, executed a deed of assumption and conveyance, assuming two new trustees to act along with him in the administration of the trust-estate. The beneficiaries now applied for recal of the sequestration and factory.

Lord Mure reported the case.

Lancaster for the petitioners. The Court took time to consider.

Judgment:

Lord President—This is a petition for recal of a sequestration And factory under somewhat peculiar circumstances, which has been reported to us by Lord Mure, and which we have thought it worth our while to consider. It seems there was a trust by M'Ewan which got into such a position, by there being only one trustee, that the trust could not be administered, and it was thought right to apply for the appointment of a judicial factor. A petition was presented in 1862, praying for service on the sole trustee, and for appointment of a judicia1 factor. The prayer has been apparently amended,—a circumstance which was not brought under our notice at the discussion,—and there is added a prayer for sequestration of the trust-estate. And, accordingly, an interlocutor was pronounced by the Lord Ordinary on the Bills, sequestrating the estate, and nominating Mr Carswell to be judicia1 factor for the purposes of the trust, and with the usual powers. It appeared to us formerly that the Lord Ordinary, in sequestrating the trust-estate, had gone beyond the petition; but it now appears that this was justified by the prayer as amended. Any irregularity is very trifling. The usual powers are given, as well as the powers in the trust-disposition and settlement but there is nothing material in that. The question is whether, standing the estate under the management of the factor, it is competent for the sole trustee to execute a deed of assumption assuming two new trustees, and whether that deed can be given effect to by recalling the appointment of the judicial factor, and allowing the trust to revive? I believe your Lordships are all of opinion that that is competent. At first there is a technical difficulty in holding that a trustee who has been superseded, and out of whose hands the estate has passed, can execute a conveyance to himself and two others. But this objection is one of form more than of substance, and in administering our equitable jurisdiction we are not bound to give effect to it. The deed of the trustee is now brought into active operation, for the first time, by our deliverance of recal, and I therefore think the prayer of this petition may be granted.

The other Judges concurred.

Counsel:

Agent for Petitioners— John Ross, S.S.C.
1867

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