Scottish Court of Session Decisions

By antenuptial contract of marriage between the Rev. Henry Walker and Miss Eleonora F. J. Gordon, with consent of her father Thomas Gordon of Park, Mr Walker agreed to assign to the marriage-contract trustees a policy of assurance over his life for £500, in addition to the whole property he might acquire during the marriage, which provisions, in addition to the annuity to which she would be entitled from the Ministers' Widows' Fund of the Church of Scotland, Miss Gordon accepted as in full of her legal rights. On the other hand, her father agreed to pay to the trustees, at the first term after his decease, a sum of £2000 to be invested by them for behoof of the spouses and the survivor, and after the death of the survivor the principal sum was to be divided among the children of the marriage, if any. The trustees were Andrew Steuart of Auchluncart, Major Duff of Drummuir, and three others, who had died before the date of this petition. Mr Gordon died in 1857, and the £2000 was paid to the trustees. Mr Walker died in 1860, predeceasing his wife, and leaving three children. The proceeds of the policy were paid to the trustees, and were invested at the date of the petition along with other sums in a mortgage of the North British Railway Company, in the names of Messrs Mackenzie, Innes, & Logan,

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W.S, who had granted a declaration of trust to the effect that they held it to the extent of £500 (the sum in the policy) for Mr Steuart and Major Duff as trustees under the marriage-contract. This bond was paid up in November 1880, and the money paid into bank.

It 1871 it became necessary to uplift and to reinvest the sum of £2000 obtained from Mr Gordon. Mr Steuart declined to take any part in the matter, but Major Duff and the only survivor of the other two trustees, as a majority of the trust, reinvested the money.

In 1875, after the death of the only remaining trustee other than Messrs Duff and Steuart, the debtor in the security for £2000 intimated that he would pay up the money, and the agents of the trust suggested another investment, but Major Duff and Mr Steuart were unable to agree upon the investment proposed, or any other investment. Accordingly the money was paid into bank on 20th December 1875, where, owing to the discharge being unsigned, it remained at a low rate of interest till February 1877. The loss from this cause was considerable. Mr Steuart some time after February 1877 agreed to sign the discharge, and the money was reinvested. At the date of this petition it was on the point of being once more paid up.

Mr Steuart in 1880, when the mortgage of the North British Railway Company was paid up, suggested the appointment, as a third trustee, of the Rev. Mr Aikman, with whom Mrs Walker had some time previously entered into a second marriage. Major Duff objected to the appointment of a person so much interested in the income of the funds. Mr Steuart then suggested an application to the Court, and Major Duff, while not objecting to this course, declined himself to suggest any trustee.

This petition was then brought by Mrs Aikman and her three children by her first husband Mr Walker, the only beneficiaries under the trust. They asked the Court, in the exercise of their nobile officium, looking to the loss caused by the existing dead-lock in the trust, to appoint new trustees. The petitioners asked the appointment of three persons named, of whom Mr Steuart had suggested one, to act as trustees along with Major Duff and Mr Steuart.

No answers were lodged, but Major Duff lodged a minute at the bar stating that while he had no knowledge of the persons whose appointment was craved, he offered no opposition to the prayer of the petition being granted, on the Court being satisfied that they were suitable persons to be appointed. The minute also stated Major Duff's intention of resigning so soon as the new trustees were appointed.

The petitioners referred to M'Aslan, January 17, 1841, 3 D. 1263; Glasgow, December 5, 1844, 7 D. 178; M'Laren on Wills and Succession, ii. 219.

The Lords, without delivering opinions, granted the prayer of the petition.