Scottish Court of Session Decisions

By mutual disposition dated 7th April 1880 Mr and Mrs Thomas Brown disponed their whole estate, heritable and moveable, to David Nicolson and others, as trustees, for the purpose, inter alia, of dividing the residue among their children, or their issue, at the death of the surviving spouse. Mrs Brown died on 14th July 1884, and her husband on 18th April 1886, survived by seven children, and the family of an eighth.

After Mr Brown's death it appeared there was a sum of £600, which had been lent by Mr Brown to Mr Nicolson, one of the trustees, and was still due by him at the date of Mr Brown's death, which had not been handed over to the trustees. On inquiry it appeared that the sum was repaid by Mr Nicolson on 13th August 1884, as follows—A sum of £300, 4s. 8d. was retained by Mr Nicolson as the amount due to him by Mr Brown under a bond of caution and relief dated 26th March 1881, and letter of guarantee by Mr and Mrs Brown dated 12th July 1884, whereby Mr Brown had undertaken to be responsible, jointly along with his son Robert Kerr Brown, for any loss that might be incurred in connection with the business of hotel-keeper carried on by him (Robert Kerr Brown) at the Bursar's Hotel, Aberdeen, but that only to the extent of £400. The loss upon that business so long as it was carried on amounted to £600, 9s. 5d., and in terms of the bond Mr Brown's share, which was, however, restricted by Mr Nicolson to one-half of the loss, was satisfied as above narrated. The balance of the debt of £600, being £299, 15s. 4d., was then repaid to Mr Brown by Mr Nicolson, and appeared from Mr Brown's books to have been invested by him in shares of the Distillers' Company, which were included in the inventory of Mr Brown's estate.

The trustees entered into possession and management of the estate on the death of Mrs Brown, and on 22nd October 1884 they held a meeting, at which Mr Brown was present, and gave up a statement of his estate, and of the securities upon which it was invested. These securities were thereupon transferred to the names of the trustees, who thereafter paid the income of them to Mr Brown until his death, as directed by the mutual deed.

On Mr Brown's death, questions having arisen among the eight beneficiaries as to their respective rights, the trustees brought a multiple poinding, in which the amount of the fund in medio as set forth in the condescendence was stated at £2713. There was also a statement in the condescendence giving the amounts of certain advances made to the beneficiaries, with interest thereon, which the trustees proposed to deduct from the shares of residue effeiring to each.

Objections were lodged to the condescendence of the fund in medio by Mrs Thomas Brown junior, the widow of one of the children, for herself and her children. She stated her objections under three heads, the second of which set forth that the above mentioned sum of £600 fell to be included in the fund, being an asset of the estate as at the death of Mrs Brown, at which date the trustees entered into possession of the estate. There were allegations that Mr and Mrs Brown had been induced to sign the letter of guarantee of 12th July 1884 under false representations, and there were other averments pointing to a reduction both of that document and of the discharge and settlement of the Bursar's Hotel transactions, which took place on 13th August following.

These averments proceeded upon the ground that previous to these dates Mr Nicolson had granted to Mr Robert Kerr Brown a discharge of the whole liabilities in connection with the hotel, which document was produced. It was further denied that the £299, 15s. 4d. was applied as stated by the trustees.

In answer the trustees produced the documents

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in question, and stated that they had given very careful consideration to the matter, and were satisfied that they had no claim against Mr Nicolson.

The Lord Ordinary ( Fraser) on 22nd February 1888 allowed the parties a proof of their averments, the objector to lead in the proof.

The trustees reclaimed, and argued—Even assuming that the objector's averments were relevant, they could not be required to go to proof on a question of the kind with a third party when they were satisfied they had no good ground of action, and at the expense of the trust-estate, They were willing to give the objector their instance, and let her fight the matter out herself on her finding security for expenses— Duke of Buckingham v. Breadalbane's Trustees, January 17, 1844, 6 D. 403. Beyond that they could not be asked to go, especially as the objector's share in the residue was more than swallowed up by her debt, composed of advances and interest. The documents which had been produced were prima facie quite regular and complete. Further, she was the only one of the eight beneficiaries who had taken the objection.

The objector argued that she had set forth a relevant case as against the trustees, and that in any view she should not be obliged to pay the expenses of the proceedings.

At advising—