Scottish Court of Session Decisions

This was an action of accounting brought in the Sheriff Court of Aberdeenshire by Mrs Margaret Mather or Taylor against Mrs Milne or Mather under the following circumstances:—By mutual trust-disposition and settlement, dated 9th August 1825, John Mather, of Gaberstone Toll-bar, and Mary Weir, his spouse, assigned and disponed to each other, and the longest liver of them, in liferent, for the liferent use of the survivor only, and to their children, James, Mary Ann, Margaret, and Catherine Mather, and to any other child or children that might be procreated between them, equally betwixt them, share and share alike, and their respective heirs and assignees in fee, all and sundry household furniture, goods, gear, debts, and sums of money, and moveable property of every description, then belonging, or that should belong and be due and addebted to them at their death, and nominated and appointed their said disponees, for their respective rights and interests as above mentioned, to be their executors. The said John Mather died on the 9th of April 1826, having been predeceased by the said Mary Weir, his spouse, and was survived by his said four children, James, Mary Ann, Margaret, and Catherine. Catherine died within a week of her father's death, in the years of pupillarity. James Mather assumed to act as executor, but died about seven months after his father, survived by his widow, the defender in this action. On James Mather's death, the family was reduced to two, the pursuer, Margaret Mather, and her sister Mary Ann, who were both in pupillarity. The defender, who had been appointed by James Mather his executrix, brought up these two children, and the pursuer remained with her until her marriage. The pursuer's sister, Mary Ann, also remained with the defender until she was sixteen years of age, when she sailed for Australia, but died on the voyage. When Margaret, the pursuer, married in 1841, she received £5 from the defender, and Mary Ann, when she sailed for Australia, received £40, besides £20 for outfit. The defender had never made any other payments to the pursuer or her sister out of the estate of John Mather, and had never accounted for her intromissions. This action was accordingly raised in 1871, to compel her to account for her intromissions, and pay any balance which might be owing.

In defence, she averred that she had expended all the funds in bringing up the children, and that in fact she was out of pocket by so doing.

After a proof, the Sheriff-Substitute pronounced an interlocutor in which he assoilzied the defender.

On appeal, the Sheriff pronounced the following interlocutors:—

“ Edinburgh, 5 th June 1872.—The Sheriff having considered the reclaiming petition against the interlocutor of 16th April last, with the answers thereto for the defenders, and having considered the record, proof, productions, and whole process, sustains the appeal, recals the interlocutor appealed against: finds that the defender, Isabella Milne or Mather, is the widow of James Mather, eldest son of John Mather, of Gaberstone Toll-bar, in the county of Clackmannan, who died there in 1826, and that the said James Mather died in January 1827, after giving up an inventory of his father John Mather's personal estate; that on her husband's death the defender took possession of both his own estate and the estate falling to the surviving children of the said John Mather; and that she is now bound to account to the female pursuer, as one of the said surviving children, for her intromissions therewith. Before further disposing of the cause, appoints an inquiry to be made by an accountant into—(1) The amount of the estate and effects left by the said deceased John Mather; (2) The amount thereof which came into the hands of the defender, and remained in her possession after payment of debts due by the deceased, and other proper charges; (3) The payments from time to time made by the defender to the pursuer, or her sister, Mary Ann Mather, and the sums expended, or which may reasonably be assumed to have been expended, on their clothing and education; (4) The sum which may he assumed to have been expended on her board, under deduction of the value of her domestic services; and (5) The balance, if any, still due and payable to the pursuer, either in her own right or as representing the other members of the family, who have predeceased. Remits to James Meston, accountant in Aberdeen, to examine the process, hear parties, call for such further documents as may be recoverable and appear to be necessary, and thereafter prepare a report in terms of this interlocutor, the same to be lodged quam primum.

Note.—It would have been a very easy thing for the defender and her brother John Milne to have kept an account of their intromissions with the money belonging to the pursuer's father, and if they had done so she would probably have exhibited her accounts and obtained a proper discharge from the pursuer when she married her present husband in 1841. Every person holding a fiduciary position should always be prepared to give an account of his administrations; and it is not for a trustee to say, at the end of a great many years, ‘I have never accounted because no account was ever asked, and I am no longer in a position to do so.’ The account may never be asked by the benefieiary, for the reason ‘that, having been left an orphan at an early age, he had no idea what his rights were. But the failure of the persons entrusted to make the inquiry can in no way affect the position and legal objections of a trustee, because it is plainly his duty to go and tell the beneficiaries what their rights are, whether the question is put or not. It is, therefore, a rule of familiar application in Courts of Equity, that when the proper occasion arrives a trustee will be expected to tender the exhibition of his account, even although he has received no formal requisition to that effect. For these reasons the Sheriff cannot hold that this action should now be thrown out because it is forty years since that old John Mather died. The pursuer is entitled to know what the defender did with her father's money during her infancy, and as no such account was ever before tendered, the inquiry which has been ordered must proceed.”

Edinburgh, 21 st December 1872.—The Sheriff having heard parties' procurators on the accountant's report, and considered the record, productions, and whole cause: finds that the free residue of the estate of John Mather, who died on 9th April 1826, amounted in all to the sum of £340; that it was divisible in four equal parts among his children, James, Mary Ann, Margaret, and Catherine Mather; that Catherine having died soon after her father, the share falling to the pursuer

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and her sister Mary Ann amounted to £226; that the defender took possession of this sum, and never rendered any account of her intromissions: finds that the pursuer and her sister Mary Aun, having, on the death of their father, been taken charge of by the defender, she is entitled to an allowance for their board and education during their early years; but in all the circumstances, the interest of the money prior to the pursuer's marriage in 1841, taken along with the value of her own services, is reasonably sufficient to cover said outlay and the few gifts given to the pursuer on that occasion: finds that Mary Ann left this country for Australia in 1841, and that on that occasion her passage money and outfit were paid, which may be assumed to have amounted to between £30 and £40, leaving the sum of £80 still due and payable as the balance of her share: finds that, on the death of the said Mary Ann Mather, the pursuer became entitled to this balance, and that, added to her own share of her father's money, the fund to which she was entitled in the year 1841 amounted to £193: finds further that the defender is liable in five per cent. on this sum from the said date down to the date of this action, amounting in all to the sum of £299, 3s., which, added to the said sum of £193, amounts to £492, 3s. Decerns against the defender for the said sum of £492, 3s., with interest at the rate of five per cent. till payment: finds the defender liable in expenses; allows an account thereof to be given in: and remits the same, when lodged, to the Auditor for taxation; and decerns.”

The defender appealed.