Scottish Court of Session Decisions

The late William Roger senior, Dundee, died in December 1884, aged 87, leaving a daughter Janet Roger, who was insane and confined in an asylum near Dundee. There was a son William Roger, who predeceased his father, leaving a widow and seven children. The eldest daughter was married to David Watt, produce merchant, Dundee. The others lived in family with their mother.

William Roger senior left a trust-disposition and settlement dated 10th December 1875 by which he appointed certain trustees and directed them to pay the whole yearly income of his estate after his death equally between his children William and Janet Roger, and in the event of the brother predeceasing her, which event happened, they were directed to pay or expend for behoof of his children the share which would have fallen to their father if alive, and on the death of Janet Roger they were directed to hold, pay, and apply the whole estate to and for behoof of the children of William Roger junior. By a codicil dated 14th February 1881 the truster provided that if William Roger's wife should survive him, which event happened, she should receive during her lifetime what her husband would have received if he had been alive. By another codicil dated 17th February 1883 the truster recalled the appointment of the original trustees and appointed Mrs Roger, the widow of the late William Roger junior, Daniel M'Ewan Roger, her son, and James Gray, joiner, Dundee, to be the new trustees. Upon the death of William Roger senior these trustees took possession of and entered upon the administration of the estate.

Upon 18th May Mrs Watt, with the consent and concurrence of her husband, raised an action against Mrs Roger as an individual and the above-named trustees to have them ordained to produce an account of their intromissions with William Roger senior's estate, and also to ordain Mrs Roger to pay to these trustees the sum of £ 1500 due by her to the estate.

The pursuer averred that the codicils were obtained from William Roger “while weak and facile by fraud and circumvention and undue influence exercised by the defender Mrs Roger to benefit herself.” She averred also—“Deceased had a sum of between £800 and £900 deposited in the Dundee Savings Bank (Investment Department), and it is believed and averred that the defender Mrs Roger shortly after her husband's death in July 1881 uplifted the same and applied it to her own uses and purposes, and that without any authority from the deceased William Roger senior or anyone on his behalf… . The defenders, the trustees of the late William Roger, however, have never called the defender Mrs Roger to account for her intromissions, and refuse to do it although repeatedly called on by pursuer to do so. As already explained, the trustees are the defender Mrs Roger herself, her son Daniel M'Ewan Roger, who lives in family with her, and their friend the said James Gray, who is largely indebted to her, and they were nominated by the foresaid codicil, impetrated fraudulently from the deceased by Mrs Roger simply for the purpose of evading an action of count and reckoning for her intromissions which she knew the trustees would at her instigation refuse to raise. The trustees

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would not raise an action against the defender though desired to do. In these circumstances the present action has been rendered necessary.”

The defender averred—“Explained that shortly after her husband's death Mrs Roger received in gift from her father-in-law the sum of £775, 8s. 6d., then at his credit in the Dundee Savings Bank. This money had been originally intended by the deceased, and was promised by him, as a gift to William Roger junior; but as the latter had not uplifted the money when he died, the truster shortly after his son's death handed over the bank-book containing the above-mentioned sum to the defender, and requested her to uplift the money and apply it to her own uses. The said sum was presented by the deceased to the defender to be her absolute property.”

The pursuer pleaded—“(1) The defender Mrs Helen Greig Heath or Roger having intromitted with the estate of the late William Roger senior, she is bound to hold count and reckoning, and to make payment, in terms of the first conclusion of the summons. (2) Failing count and reckoning, the defender Mrs Roger ought to be decerned to make payment of the sum of £1500 as alternatively concluded for.”

The defenders pleaded—“(1) No title to sue.”

Upon 27th November 1889 the Lord Ordinary sustained the defender's first plea-in-law and dismissed the action.

“ Opinion.—This is an action by a bene ficiary under a trust-settlement, calling upon a debtor to the trust (if a debtor at afl) to count and reckon for her intromissions with the trust-estate, and to pay the balance found due to the trustees on that estate. I think the pursuer has no title to sue such an action. See the case of Henderson, 16 R. 341, and cases there referred to. As pointed out in these cases, the pursuer should call upon the trustees to raise an action against Mrs Roger, and if they decline, to obtain the use of their names as pursuers by finding caution to keep them free of all expenses of process.”

The pursuer reclaimed.

At advising—