Scottish Court of Session Decisions

This was an action of declarator, count, reckoning, and payment, raised in the year 1862 by the late Henry Sawers, residing near Whitburn in Linlithgowshire, against the trustees of the late Peter Sawers, bleacher at Nether Kirkton, acting under his trust-disposition and deed of settlement, dated 16th day of March 1853. Under that deed Henry Sawers was himself a trustee, but he was also a beneficiary, the truster having directed the trustees, after payment of certain debts and legacies—“to pay and convey the residue and remainder of the said trust-estate to and in favour of the said Henry Sawers (the pursuer) in liferent, for his liferent use allenarly, and to his male issue, if any, lawfully begotten, who shall be in life at the time of my death, in fee.” Upon failure of Mr Henry Sawers, the liferent was conveyed in similar terms to the present defender, who was also a trustee, Henry Sawers raised the present action against his co-trustees, to compel them to implement the trust-deed, and the summons contained a conclusion that “the defenders ought and should be decerned and ordained, by decree foresaid, to exhibit and produce before our said Lords a full and particular account of their whole intromissions under the foresaid trust-disposition and deed of settlement with the estate of the said Peter Sawers, who died on the 27th day of November 1859, whereby the true residue and remainder of the said trust-estate, as well as the true amount of the annual produce of the said residue and remainder, may appear and be ascertained by our said Lords.” The trustees appeared and defended the action. In the statement of facts for the defenders it was set forth that the accounts and vouchers of the trust were recently placed in the hands of Messrs Wink & Wight, accountants in Glasgow, that a report, in which the present position of the trust affairs should be exhibited, might be prepared for the information of all concerned. And, subsequently, an account (No. 10 of process) prepared by Messrs Wink & Wight, was lodged, which showed the position of trust affairs down to 3d Jan. 1863, By an interlocutor of Lord Kinloch, 21st January 1864, the Rev. Peter Sawers, as a beneficiary, was allowed to compear as a defender, and lodge separate answers, which he accordingly did. These answers contained a repudiation of certain proceedings of his co-trustees with regard to the administration of the trust-estate. An interlocutor of the Inner House, of date Nov. 1864, found that the pursuer was entitled to the whole free income of the residue of the trust-estate, and remitted the case for further procedure to the Lord Ordinary. This judgment recognised the right of the Rev. Peter Sawers to appear and protect his interest, but repelled the whole other pleas stated for him. Accordingly the free annual residue of the estate was paid over to the pursuer, but the action was proceeded with to determine the question of count, reckoning, and payment. After repeated orders from the Lord Ordinary, the defenders, the trustees, lodged a continuation of their intromissions (No. 25 of process) down to 31st Dec. 1864. In October 1867 the pursuer died, and the widow and executrix was sisted as pursuer. She claimed the balance alleged to be due to her husband at the time of his death. The orders of the Court for a continuation of the trust accounts being renewed, the defender, now the liferenter and only surviving and acting trustee, lodged a minute in the double capacity of beneficiary and trustee, in which he referred to the accounts Nos. 10 and 25, already lodged, as the trust accounts, and craved for a remit to an accountant to audit them. On 15th June 1869, however, he lodged a continuation of the trust accounts, in which he stated that “the previous position of affairs in this trust will be found explained in (1) Account of the trustees of the late Peter Sawers, from 27th Nov. 1859 to 3d Jan.

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1863, No. 10 of process; (2) Account of the intromissions of said trustees from 3d Jan. 1863 to 31st Dec. 1864, No. 25 of process;” and elsewhere in the same document he recognised them as “detailed trust accounts.” A remit was made on 13th July 1869 to Mr Charles Ogilvy, accountant in Edinburgh, to examine and audit the trust accounts of the defenders, and to report. Upon the appearance of Mr Ogilvy's report the defender stated a number of objections to it, and he now maintained that the accounts No. 10 and 25 were truly the accounts of the late pursuer Henry Sawers alone, and that they were inaccurate in many respects. By interlocutor of the Lord Ordinary, of 27th July 1870, the accountant was instructed to proceed with the remit under which he acts, on the footing that he is to reject consideration of all objections stated to the accounts referred to by him in the said note as “the prior trust accounts, closing at 31st December 1864.” This interlocutor was not reclaimed against, and proceedings went on before the accountant, which resulted in a second report, with which the Lord Ordinary ( Jerviswoode) made avizandum, and upon 8th Nov. 1872 issued an interlocutor finding a certain balance due to the pursuer as executrix of the late Henry Sawers, and finding her entitled to expenses.

Against this interlocutor the defender, who still insisted upon the objections which he had stated to the accountant's reports, reclaimed. He asserted his right to go back upon the accounts Nos. 10 and 25 of process, and show that they were incorrect, and maintained that his rights as beneficiary were not to be prejudiced by his acting as trustee.

The respondent maintained that the defender was personali exceptione barred from doing this. He was one of the trustees who originally lodged the accounts in question, and had since that, while carrying on the action both as sole trustee and beneficiary, referred to them as correct. Upon the footing that they were so the accounting had proceeded.

At advising—