Scottish Court of Session Decisions

Miss Agnes Dalgleish Stewart died on 28th January 1892 leaving a trust-disposition and settlement, whereby she disponed her whole estate to the Reverend David Morrison, John Hunter Bowie, William Hunter Bowie, and William Alexander, the acceptors and survivors or acceptor and survivor, in trust for the purposes mentioned in the deed. In the third place, she directed the trustees to pay the liferent of the whole

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residue of her estate to her niece Dorothea Gordon Stewart, and upon her death to pay and convey the capital to her sisters Mrs John Hunter Bowie and Mrs M'Laren equally, whom failing to their children, declaring that the fee of the residue should vest at the death of the liferentrix.

At a meeting of the relatives of Miss Stewart held shortly after her death, for the purpose of having her will read, Mr J. H. Bowie, who was the only trustee present, intimated that he had decided to put the affairs of the trust into the hands of Messrs A. & A. Jenkins, solicitors, Stirling, and on 5th February he requested the Messrs Jenkins to call a meeting of the trustees for the 9th. Mr Morrison was at this time on the Continent, and Mr Alexander did not attend the meeting. The only trustees accordingly present at the meeting were the Messrs Bowie, who accepted office, and passed a resolution appointing Messrs A. & A. Jenkins agents of the trust, and empowering them to take the usual steps to procure confirmation, and to apply to Mr Alexander, who had been Miss Stewart's agent, for the documents belonging to her in his possession.

Mr Morrison having returned from abroad on 13th February, Mr Alexander thereafter called a meeting of trustees for the 1st March, which was attended by all the trustees. At this meeting Mr Morrison and Mr Alexander accepted office, and Mr Morrison having moved that Mr Alexander should be appointed agent in the trust, Mr Alexander intimated his acceptance of the appointment. The Messrs Bowie did not agree to this appointment.

Mr Alexander subsequently, with Mr Morrison's consent, in order to remove the deadlock which had occurred in the administration of the trust, wrote to the Messrs Bowie waiving his own appointment, and offering to concur with them in the appointment of any of four law-agents named, but to this proposal the Messrs Bowie would not accede.

On 29th June a petition was presented by Miss Dorothea Stewart, who was entitled to the liferent of the trust-estate, craving the Court to sequestrate the trust-estate, and if necessary to remove the trustees from office and to appoint a judicial factor.

The petitioner stated that in consequence of the difference which had occurred among the trustees nothing had yet been done by them in the administration of the trust; that confirmation had not been taken out, and that the revenue accruing on the trust-estate was not being uplifted, with the result that she was being kept out of the enjoyment of her liferent, and that she believed that there was no prospect of the deadlock which had occurred being removed.

Mr Morrison and Mr Alexander lodged answers. They admitted the truth of the statements made in the petition, and stated that to allow Messrs Bowie's nominees to be appointed law-agents in the trust would be, in their opinion, to virtually surrender the management of the trust into the hands of the Messrs Bowie; that there were special reasons why this should not be; that both the Bowies were undischarged bankrupts, and that Mr W. H. Bowie was indebted to the trust. He therefore submitted that unless the Messrs Bowie would adopt a more reasonable course of conduct, the only alternatives left were either to appoint a judicial factor or to remove the Messrs Bowie from office.

The Messrs Bowie, along with Mr J. H. Bowie and Mrs M'Laren, the presumptive fiars of the trust-estate, also lodged answers. They objected to the petition being granted, and submitted that there was no good reason for removing the trustees from office, and that the appointment of a factor was neither necessary nor expedient, as there had been no undue delay on the part of the Messrs Bowie, and they were willing to take whatever steps might be necessary for the due administration of the trust.

The petitioner argued—A deadlock had occurred in the administration of the trust, and the petitioner was entitled either to have the estate sequestrated— Adie v. Mitchell, Deeember 19, 1835, 14 S. 185; Forbes v. Forbes, February 14, 1852, 14 D. 498; or to have the trustees, whose unreasonable conduct had caused the deadlock, removed from office— M'Whirter v. Latta, November, 15, 1889, 17 R. 68. The Bowies should not have transacted important trust business without giving Mr Morrison a reasonable opportunity of being present— Wyse v. Abbot, &c., July 19, 1881, 8 R. 983.

Argued for the respondents Bowie and others—The question was merely as to the choice of an agent for the trust. These respondents thought that the Messrs Jenkins had been properly appointed, but if they were wrong they would give way. The mere fact, however, that trustees could not act harmoniously was not a sufficient ground for removing the trustees or for sequestrating the trust-estate— Hope v. Hope, October 29, 1884, 12 R. 27: Neilson & Others, February 23, 1865, 3 Macph. 559; Lynedoch v. Ochterlony, February 15, 1827, 5 S. 358; Laird v. Miln & Mitchell, December 7, 1833, 12 S. 187.

Counsel for the respondents Morrison and Alexander was also heard.

At advising—