Page: 462↓
Trustees under a trust-disposition having raised an action of M.P., the Court found one of the claimants entitled to the heritage. After this decree the trustees granted a lease of part of the heritage, and refused to convey the estate to the heir until they received exoneration. Held that the trustees were entitled to exoneration up to the date of the raising of the action, but that they were bound to denude in favour of the heir without receiving exoneration for subsequent actings.
This was an action of multiplepoinding and exoneration by the trustees of the deceased Mr Barnet of Hillhead in Aberdeenshire. The truster left considerable property, heritable and moveable, and after a proof, Alexander Barnet, residing at Backward of Kemnay, Aberdeenshire, was preferred to the heritage, and certain other claimants to the moveables. Against that preference the unsuccessful claimants of the moveables appealed to the House of Lords, but the unsuccessful claimant of the heritage did not appeal. Alexander Barnet having called on the trustees to denude, they offered to comply on receiving exoneration; this, however, he refused to grant, on the ground that they had acted ultra vires in granting a lease of the heritage after the date of the multiplepoinding, and that this lease was to be reduced. The Lord Ordinary ordained the trustees to execute and lodge in process a disposition of the heritage, and thereafter found Alexander Barnet entitled to borrow it from process and retain it as his own deed. Against that interlocutor the trustees reclaimed.
Page: 463↓
Solicitor-General and Birnie, for the reclaimers, argued that trustees were not bound to denude till offered exoneration for their whole actings with reference to the trust-estate; that the trustees here had not sufficient funds in their hands or deposited in Court to secure them against the result of the threatened reduction; and that they were not safe to denude in favour of the heir in heritage until the issue of the appeal as to the moveables should be ascertained. Farther, that if the heirs in moveables were held not to have been the nearest relations of the deceased, and therefore to have been wrongously preferred to the moveables, their brother, the heir in heritage, must have been wrongously preferred to the heritage. ( Elliot's Trustees v. Elliot, 1828, 6 S. 1058; Edmond v. Blaikie and Anderson, 1860, 23 D. 21.)
Watson and Johnstone, for the respondents, replied that after the heir had obtained decree in his favour, the trustees could no longer lawfully withhold from him the disposition to the heritage; that they had acted ultra vires in granting a lease of the heritage after the case was in the hands of the Court, and that, therefore, they could not claim exoneration for actings subsequent to the date when the action was brought into Court.
At advising—
The Court pronounced the following interlocutor:—“Find that the reclaimers are entitled to be exonered and discharged of their whole actings and intromissions up to the date of bringing the action into Court, and exoner and discharge them accordingly, and decern. Quoad ultra, adhere to the Lord Ordinary's interlocutor: Find the reclaimers liable in expenses since the date of that interlocutor, and remit,” &c.
Solicitors: Agents for Reclaimer— Tods, Murray, & Jamieson, W.S.
Agent for Respondents— T. J. Gordon, W.S.