Scottish Court of Session Decisions

This was an action of reduction, count, reckoning and payment, and removing, at the instance of Alexander Allan, labourer, Tillicoultry, as administrator-in-law to his daughter Charlotte Allan, the only surviving child of him and of the deceased Christian Forrester or Allan, his wife, who was the only surviving child of Charles Forrester, feuar in Coalsnaughton, in the county of Clackmannan (the said Charlotte Allan being the nearest and lawful heir-at-law of the said deceased Charles Forrester her grandfather), against John M'Donald, only surviving and accepting trustee and executor under the trust-disposition and settlement of the said Charles Forrester.

The pursuer concluded for reduction of the said trust-disposition and settlement of the deceased Charles Forrester, with all that had followed thereon; and that the defender should be ordained to count and reckon with the pursuer, as administrator-in-law for his daughter, for the rents and income of the estate belonging to the deceased Charles Forrester intromitted with by him, and that from the 20th February 1855, the date of the death of the said Charles Forrester; and to make payment of the sum of £250 sterling as the balance due upon said accounting; and lastly, that the defender should be ordained to flit and remove from and give up to the pursuer, as administrator foresaid, possession of the heritable subjects and whole other estate of the said deceased Charles Forrester.

From the pursuer's condescendence it appeared that Charles Forrester had died in 1855, survived by his wife and an only child, Christian Forrester, who married the pursuer Alexander Allan in the year 1858. The said Christian Forrester or Allan died in 1863, survived by her husband and an only child, Charlotte Allan, born in 1860. By the trust-settlement sought to be reduced the whole estate of the said Charles Forrester was held by his trustee, the defender, for behoof of the pursuer's daughter Charlotte Allan, after payment of two or three very small legacies, and would have been transferred to her upon her attaining majority. The reason of reduction was that the deed was defective in essentialibus, wanting in the testing clause the designation of the writer and of one of the witnesses to its execution. It was not disputed that the defender had acted in good faith, in ignorance of the invalidity of the deed, and with his best care and judgment as trustee under the deed sought to be reduced during the whole time from 1855 till the raising of this action, and that during that time no question as to the validity of the deed was raised by any one.

The pursuer pleaded—“(1) The said pretended trust-disposition and settlement called for being deficient in the solemnities required by the law of Scotland to a valid and effectual conveyance, the pursuer, as administrator-in-law for his said daughter, who is the heir-at-law of the granter, is entitled to have the same reduced and set aside in terms of the reductive conclusions of the summons; (2) The said pretended trust-disposition and settlement being reduced and set aside, the defender, the said John M'Donald, is bound to count and reckon with the pursuer for his intromissions with the estate of the said deceased Charles Forrester; and the pursuer is entitled to decree for count, reckoning, and payment, &c. in terms of the conclusions of the summons.”

The defender pleaded—“(1) The pursuer, or those whom the pursuer represents, having homologated the deed called for, or at least having allowed the defender and co-trustees to act on the said deed as a valid deed, and to make advances for the trust on the faith of the same, the present action, as laid, cannot be maintained; (2) Whether the deed be liable to reduction or not, the defender's actings having been merely as trustee, he is not liable excepting for his intromissions; and he is entitled, in any accounting, to credit for all sums disbursed or expenses incurred by him in connection with the trust; (3) There are no grounds stated or existing for decerniture against the defender personally; and, in the circumstances, the defender is entitled to the expenses incurred by him in this action, either against the pursuer, or as expenses connected with the trust.”

Upon 19th January 1871 the Lord Ordinary ( Gifford) pronounced the following interlocutor:—“The Lord Ordinary having heard parties' procurators, and considered the trust-disposition and settlement libelled—Finds that the same is defective in the solemnities required by law: Therefore reduces, decerns, and declares, conform to the reductive conclusions of the libel, and grants warrant as craved; reserving all questions of accounting between the parties, and reserving also the question of expenses; and with these reservations, appoints the defenders, within ten days, to lodge an account of their intromissions.”

Thereafter a minute was put in for the pursuer in the following terms;—“Campbell Smith, for the pursuer, stated that he was willing to hold that the balance due on his intromissions by the defender is £2, 12s. 9d., reserving the question whether Mr M'Watt has any claim against the trust-estate for his account, and any answer that may be made to said claim.” Accordingly on 17th March 1871 the Lord Ordinary pronounced the following interlocutor;—“The Lord Ordinary having considered the defender's abstract of accounts, No. 22 of process, and the relative minute for the pursuer, No. 218 of process, Finds, in terms thereof, that the balance due to the pursuer on the accounting is £2, 12s. 9d.; and having heard parties' procurators on the question of expenses, Finds the defenders entitled to expenses, and modifies the same to five guineas; Finds that after deducting the one sum from the other there remains a balance due to the defender of £2, 12s. 3d., and decerns.”

Against this interlocutor the defender reclaimed.

Lee, for him, contended that he was entitled to his full expenses, unless he had unreasonably litigated, which under the circumstances it could not be maintained he had.

Campbell Smith, for the respondent, contended that the trustee had caused an unreasonable litigation by taking his first plea of homologation, which he afterwards departed from, and that the Lord Ordinary, having before him the whole facts and circumstances of the case, had rightly given him only modified expenses.

At advising—