Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker and Another (Salmon's Trustees), Petitioners [1868] ScotLR 5_543 (27 May 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0543.html
Cite as: [1868] SLR 5_543, [1868] ScotLR 5_543
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 543↓
Court of Session Inner House Second Division.
Facts:
Four trustees accepted a trust, a majority being a quorum. Two of them, A. and B., having been sequestrated in 1855, ceased thereafter to reside in Scotland, and made no answer to applications regarding the management of the trust. On a petition by the other two trustees, concurred in by the beneficiaries, alleging that a certain beneficial act of management could not be performed owing to the position of the trust, and praying for removal of A. and B, the Court ordered intimation, through the post-office, to A. and B., and also intimation to their last known agents, with certification, and thereafter they removed.
Salmon died in 1847, leaving a trust-disposition and settlement whereby Merrilees, Walker, Scott, and Salmon's two sons, John Salmon and Peter Salmon, were nominated trustees, the quorum to consist of a majority of the trustees accepting and surviving. All the parties named, except Merrilees, accepted the trust. In 1855 John Salmon and Peter Salmon were sequestrated, and Mackenzie was appointed trustee on their estates. The remaining trustees, Walker and Scott, now presented a petition for removal of John and Peter Salmon from office. They alleged that it would be greatly for the interest of the trust-estate to sell a certain property under powers contained in a bond and disposition in security, narrated in the petition, “but in the present position of the trust the petitioners have no power to act. The said John and Peter Salmon left Scotland shortly after their bankruptcy as above set forth. The petitioners believe them to be at present resident in England, but are not aware of their present address. The petitioners frequently communicated with them on the subject of this trust after they left Scotland, urging them either to co-operate with them in the management of the trust, or to resign, but they have persistently abstained from making any answer to these applications. Mr and Mrs Aiken, the sole beneficiaries under the deed, have made similar applications, and with the same result. The petitioners have also communicated with Mr William Mathieson, writer in Glasgow, who acted as the agent for the Messrs Salmon, with a view of ascertaining what they proposed to do in this matter, but Mr Mathieson has not been enabled to give any reply on their behalf.”
The petitioner prayed the Court, after intimation and service, “to remove the said John Salmon and Peter Salmon from the office of trustee under the said deed; or, without removing the said John Salmon and Peter Salmon, to authorise the petitioners to act in the said trust with as full powers as if they were a majority of the said trustees; or
Page: 544↓
otherwise, to nominate and appoint a judicial factor upon the trust-estate of the said John Salmon.” The truster's daughter, Mrs Aitken, and her husband, and the trustee on John and Peter Salmon's sequestrated estates, being the sole beneficiaries under the deed, concurred in the application.
Lancaster, for petitioners, cited Smith, 20 March 1862, 24 D. 838; Watt, 13 June 1854, 16 D. 941; M'Aslan, 17 July 1841, 3 D. 1263; Glasgow, 7 Dec. 1844, 7 D. 178; Miller, 19 Jan. 1854, 16 D. 358; Fraser, 1 March 1837, 15 S. 692.
The Court pronounced the following interlocutor:—
“ Edinburgh, 13 th May 1868.—The Lords having heard counsel for the petitioners, and no appearance having been made for any other party, appoint this petition to be intimated to John Salmon and Peter Salmon, therein designed, and that by sending through the post-office a copy of the said petition and of this interlocutor to each of them, addressed to their place or places of abode last known to the petitioners; further appoint this petition to be intimated to William Mathieson, therein designed, the last known agent of the said John Salmon and Peter Salmon, and appoint the said John Salmon and Peter Salmon to state, and that within ten days from the signing of this interlocutor, whether they or either of them will or will not act under the trust mentioned, and with certification that if they fail to do so the Lords will proceed to remove them from the said office.” (Signed 15th May.)
A minute was lodged by the agents, stating that intimation had been made as directed. No reply was made by the absent trustees.
Thereafter this interlocutor was pronounced i—
“27 th May.—The Lords having resumed consideration of the petition, with the intimation and the minute No. 9 of process, remove John Salmon and Peter Salmon from the office of trustees under the trust-disposition and settlement of the deceased John Salmon, as prayed, and decern.”
Solicitors: Agents for Petitioner— Jardine, Stodart, & Frasers, W.S.