Scottish Court of Session Decisions

This was a petition presented by the Rev. John Carmont, sometime Roman Catholic clergyman at Blairgowrie, for the removal of the Most Rev. John Strain, Roman Catholic Archbishop of St Andrews and Edinburgh, the Most Rev. Charles Eyre, Roman Catholic Archbishop of Glasgow, and the Right Rev. John M'Donald, Roman Catholic Bishop of Aberdeen, from the office of trustees under a trust known as the Mitchell Trust, and for the appointment of a judicial factor on the trust.

The Mitchell Trust was constituted by Captain Mitchell of Baldovie, Forfarshire, who died in 1865, by a deed of directions forming part of his settlement, which deed was in the following terms:—“To the Bishops of the Roman Catholic Church exercising their functions in Scotland, and including all of their order, whether or not designated as Bishops-Coadjutors, I bequeath in trust for the purpose after-mentioned” 200 out of 300 shares into which he appointed the residue of his estate to be divided, “that sum being destined to the special object of establishing and endowing an asylum for clergymen of the Roman Catholic religion officiating in Scotland who may be incapacitated by age or infirmity for the discharge of their sacred duties.” The amount of the trust-funds at the date of presenting the petition was about £50,000.

The petitioner stated that he was fifty-six years of age, and incapacitated from duty on account of infirm health, and therefore had a material interest in the administration of the trust.

The averments on which the petition was founded were—(1) That loans of trust-monies had been made to churches without any bond or other security writ being granted therefor, and that interest had not been exacted on many of these loans; and (2) that the funds which should have been managed by the whole body of trustees acting together had been divided, so that the bishop of each of the three districts into which Scotland was at the time of such division divided by the Roman Catholic Church should manage one part of it, with the result that instead of one trust there were separate trusts, each placed for management in the hands of one trustee, and that the beneficiaries were thus relieved, not from the whole fund as directed by the testator, but from a restricted portion of it set apart to each particular district.

The petitioner averred that he considered this mode of administration illegal, and fraught with danger to those entitled to benefit by the trust, and, inter alios, to himself.

The trustees lodged answers, in which they admitted that the bequest had been divided into three separate funds. They stated that they had acted in bona fide in their administration of the trust, and that they were anxious to lose no time in restoring the trust to what they had now been advised was its proper and legal condition, as a single fund administered by a body of trustees. They stated that such of the money as had been invested on security was advanced on good security, but admitted that a part had been advanced to various churches in their dioceses without security. The major part of this, however, they had now replaced, and they were willing to replace the remainder. They averred that in each year they had expended on the purposes of the trust moneys equal to the full income of the trust-fund. They submitted that the trust was one which could not from its nature be managed by a judicial factor, and the appointment of such an officer would embarrass, if not defeat, the intention of the truster, who had selected his trustees on account of their official position, and given them large discretionary powers.

The petitioner, at the bar, added to the prayer of the petition an alternative craving the Court in the meantime, whether the trustees should be removed or not, to sequestrate the estate and appoint a judicial factor— Morris v. Bain, February 27, 1858, 20 D. 716.

At advising—