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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forbes and Others, Petitioners [1877] ScotLR 15_183 (1 December 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0183.html
Cite as: [1877] ScotLR 15_183, [1877] SLR 15_183
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SCOTTISH_SLR_Court_of_Session
Page: 183↓
Court of Session Inner House Second Division.
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Facts:
A petition was presented to the junior Lord Ordinary under the 10th section of the Trusts (Scotland) Act 1867, by the trustees of a charitable bequest in a certain parish for leave to resign, and for appointment of a judicial factor in their stead to manage the trust. The petitioners, who were some of the heritors, together with the minister and kirk-session, were opposed by other heritors. The Lord Ordinary refused the prayer of the petition as incompetent under the Act, but on a reclaiming-note being presented, the Court before answer made a remit to have a scheme prepared and reported to them for carrying out the objects of the trust.
This was a petition presented to the junior Lord Ordinary ( Adam) by William Forbes of Callander and others, designing themselves “all heritors of the parish of Dairy, ” and by the minister and elders of Dairy, under the following circumstances:—As far back as 1639 Robert Johnston, of London, by will bequeathed £3000 to “sound, good, godly and pious works” in Scotland, naming certain persons to carry out his wishes. A portion of this fund was by the last surviving trustee devoted to the purpose of erecting a free Grammar School and maintaining poor scholars in Dairy parish. Certain persons were also nominated by him to frame orders and laws, but as they never acted, the management fell into the hands of the kirk-session and of the heritors, who had since 1688 managed the fund. In 1875 an action of declarator was raised against the trustees, the nature and result of which sufficiently appears from the interlocutor of the Second Division, pronounced on 30th July 1876, finding “that the heritors and kirk-session of Dairy, acting as trustees under the will of Mr Johnston, are not entitled to delegate to the Parochial Board the right to nominate poor children who are to have the benefit of the endowment fund; that the nomination of such poor children must remain with the heritors and kirk-session as trustees; and that on such nomination the School Board, while the agreement libelled on exists, are bound to have the poor children so nominated instructed in the higher as well as in the elementary branches of education, ” &c. The whole income of the fund amounted to £62, 15s. 6d. The petitioners in these circumstances thought it unadvisable, and personally were unwilling, to continue to administer so Small a fund, and they therefore applied to the Court under the Trusts (Scotland) Act 1867, sec. 10, for appointment of a judicial factor, and for power to them to resign in a body and get their discharge.
Answers were lodged by a number of persons, inhabitants of Dairy village, and interested in the bequest. They asserted that the trust funds had not been fully employed as directed in the above-mentioned interlocutor: that only a few heritors were petitioners, there being 150 heritors or more in the parish; that any such change as that of placing the fund under the control of a judicial factor should have been made when the action of declarator was depending; and that the proper mode of effecting a change would have been an application to the Inner House praying the Court to exercise its nobile officium.
The Lord Ordinary ( Adam) on the 14th November 1877 refused the prayer of the petition as incompetent, and added the following note to his interlocutor:—
“ Note.—This petition is presented at the instance of William Forbes of Callander and certain other persons designing themselves heritors of the parish of Dairy, and of the Reverend Samuel Blair, minister of Dairy, and certain other persons designing themselves the minister and elders of the parish. It is presented under the 10th section of the Trusts (Scotland) Act 1867, by the petitioners (as being the sole trustees of the trust), for the appointment of a judicial factor, and thereafter for authority to resign.
The trustees of the trust upon which the petitioners desire to have a judicial factor appointed are the ‘heritors and kirk-session of Dairy.’ But this petition is not presented in name of the heritors and kirk-session of Dairy. It is not presented in virtue of any resolution of a meeting of the heritors and kirk-session resolving to resign the trust, or authorising the petitioners to present the application. Moreover, it would appear that all the heritors are not parties to it. It is averred by the respondents, and not disputed by the petitioners, that there are numerous other persons entered in the valuation roll as proprietors of land in the parish, although it may be of small value, and these the Lord Ordinary thinks are heritors of the parish.
In these circumstances, the Lord Ordinary thinks that the petitioners have no title to apply for the appointment of a judicial factor under the 10th section of the Trusts Act, on the ground that they are the sole trustees of the trust.
If the petitioners desire individually to resign the office of trustee, they may be entitled to do so, but they are not entitled to do so under the section of the Act.
It does not appear to the Lord Ordinary that the trust ought to be administered by a judicial factor. He thinks it would be better administered by the heritors and kirk-session of the parish.”
The petitioners reclaimed, when the prayer of the petition was amended to the effect of asking the Court for a remit to prepare a new scheme, and to adjust and settle it for the future management and administration of the mortification. The Court thereupon pronounced the following interlocutor:—
“The Lords allow the amendment No. 23 of process to be received and added to the record, and having heard counsel on the reclaiming note for William Forbes and others against Lord Adam's interlocutor of 14th November 1877, before answer remit to Mr Alexander Nicolson, Sheriff-Substitute of Kirkcudbrightshire, &c, to frame and report to the Court a scheme for the future administration of the fund in question, having in
Page: 184↓
Counsel for Petitioners—Lord Advocate (Watson)— M'Laren. Agents— J. & J. Milligan, W.S.
Counsel for Respondent— Fraser—Rhind. Agents— Rhind & Lindsay, W.S.