Scottish Court of Session Decisions

This was a petition by James Hope, W.S., for removal of himself and his co-trustee John Hope, W.S., from the office of trustees on the trust-estate of the late Dr Thomas Charles Hope, and for appointment of a judicial factor on the estate.

Dr Hope died in 1844. By his trust-disposition and settlement he left his whole estate, heritable and moveable, to trustees. For more than twenty years before 1884 the petitioner and the respondent, John Hope, had been the only surviving and acting trustees in the trust. Dr Hope, by his settlement, conveyed to the trustees Wardie House, near Edinburgh, and land ad joining it. The trustees were directed to sell the house and ground, and divide the proceeds in manner provided by the trust-disposition for division of the residue of the estate. It was, however, declared that the house and grounds should not be sold so long as the truster's five nieces, or any two of them, should be alive and unmarried, or in widowhood, and should desire to reside there. The division of residue was to be equally among the seven nephews and nieces of the truster who were named in the settlement.

The averments on which the petition was presented were—That there had been from time to time interim divisions of the estate, by which much the greater part of it had been divided, but there still remained Wardie Lodge, and certain sums of money; “that for very many years past the petitioner and his co-trustee, the said John Hope, have been unable to agree upon the management of the said trust-estate, and in consequence thereof the trust has for some considerable time been at a dead-lock, and as the trust-estate is suffering through the differences between the petitioner and his co-trustee it is necessary and proper that a judicial factor should be appointed to manage the said estate and carry out the purposes of the trust so far as remaining unfulfilled.”

John Hope lodged answers. He denied the material averments of the petitioner, stating that there was only one matter on which a difficulty had existed (as to a payment of £350 to each beneficiary); that the existing trust management was simple and inexpensive; and that the appointment of a judicial factor would be expensive and wholly unnecessary.

After hearing counsel on the petition and answers, the Court allowed the petitioner to amend the petition by averring more specifically the differences that existed between the trustees.

The petitioner then stated—(1) That for a long period there had been no law-agent in the trust, though the deed contemplated that one should be appointed, and the petitioner had frequently urged such an appointment. (2) That a sum of bank stock had been some years before set free for distribution, and he had urged the distribution of it; that he had done so in 1877, but the respondent had disregarded his representations; that the stock was then selling at £232 per cent., but in consequence of the respondent's attitude it had been held till 1881, when it could only be sold at £203, and serious loss was thus caused; that the price had never been distributed, because the respondent insisted on the beneficiaries giving formal discharges instead of mere receipts, which was quite unnecessary. (3) That though only a few matters remained undisposed of in the trust, it had become unworkable owing to the obstruction and often unreasonable action of the respondent, who did not answer the petitioner's letters, and refused to furnish a state of the trust affairs. (4) That diverse opinion, and hence inaction, existed

_________________ Footnote _________________

* Decided 18th October.

Page: 34↓

as to Wardie Lodge; that the petitioner held that the time had come for selling it, as only one of the truster's nieces lived there, and the others had determined not to do so. (5) That a certain road used before 1846 as an approach to Wardie Lodge had been disused since then for that purpose, but had been used by conterminous proprietors, who had asserted a servitude over it; that the period of prescription for this servitude would soon have run, and the petitioner was apprehensive that the truster's right over the road would be lost, and the respondent had refused to concur in any step to check the running of prescription. (6) That the petitioner was convinced from the experience of twenty years, and from his present relations with the respondent, that the trust could not be worked, and that a judicial factor would best serve the interests of the beneficiaries.

Of the five beneficiaries other than the petitioner and respondent, two desired that a factor be appointed, two maintained a neutral position, and one was averse to the appointment.

Counsel were again heard on the petition as amended.

Authorities cited at debate—Thoms on Factors (Fraser's edition), p. 27; Thomson v. Dalrymple, 3 Macph. 336; Taylor, 18 D. 1097; Halcomb, 15 D. 861 (Lord Ivory's opinion); Forbes, 14 D. 498; Drummond, 19 D. 859 (Lord Colonsay's opinion); Adie, 14 S. 185; Laird, 12 S. 187.

At advising—