Scottish Court of Session Decisions

John Waugh died on 11th August 1884 leaving a trust-disposition and settlement whereby he conveyed his whole estate, heritable and moveable, to Robert Foggo and George Forrest, and to such other persons as might be assumed in virtue of the powers of assumption vested by statute in gratuitous trustees, and to the acceptors or acceptor, survivors and survivor of the same in trust for the purposes set forth in the deed. In the third place, he directed his trustees to hold and manage certain heritable subjects at South Back of Canongate during his wife's lifetime should she survive him, and to pay her aliment at a specified rate out of the rents thereof, and to pay the balance to his children William and Margaret equally; (fourth) to realise and convert into money the whole remainder of his estate, and to pay the residue thereof to his children William and Margaret equally; (fifth) on the death of his widow to convey the heritable subjects to and in favour of William and Margaret equally, or to sell the same and pay the full proceeds equally to William and Margeret.

After John Waugh's death Robert Foggo and George Forrest accepted the office of trustee, and entered upon the management of the estate.

John Waugh was survived by his wife, who died in March 1892, and by his two children William and Margaret.

On 4th November 1892 Robert Foggo, William Waugh, and Margaret Waugh presented this petition to the Court.

After setting forth the facts above narrated the petitioners stated—“That the estate of the deceased John Waugh consists principally of (1) the said property in South Back of Canongate, Edinburgh, in which the said Robert Foggo and George Forrest are heritably vested as trustees foresaid conform to notarial instrument in their favour recorded 2nd October 1884; and (2) the sum of £650 sterling, being the principal sum in a bond and disposition in security, … to which the petitioner the said Robert Foggo and George Forrest have now right as trustees foresaid by notarial instrument in their favour recorded in said last-mentioned register 2nd October 1884. That on 12th October 1892 the petitioner William Waugh offered the sum of £600 for the said subjects in South Back of Canongate, and on 17th October 1892 the petitioner Margaret Waugh accepted, so far as her interest therein was concerned, the said offer conform to missives of sale produced, and they desired the petitioner Robert Foggo, with his co-trustee, the said George Forrest, to execute the necessary conveyance in favour of the said William Waugh, with entry at the term of Martinmas 1892, when the price should be payable. That the said George Forrest had suddenly, and without demitting office as trustee foresaid, or giving notice to any of them of his intention so to do, within this last month of October proceeded to America, intending to take up his permanent residence there, but his present address there is unknown to the petitioners. The petitioner, the said Robert Foggo, is therefore sole trustee under the foresaid trust-disposition and settlement remaining in this country, but he is unable to execute the conveyance of the said property in South Back of Canongate as desired, although it is necessary that the transaction should be settled at the term of Martinmas 1892 as originally agreed upon. Further, the bond and disposition in security already referred to as part of the trust-estate was called up by the truster … and afterwards exposed for sale, but unsuccessfully, by the petitioner Robert Foggo and the said George Forrest as trustees foresaid … The trustees thereafter entered into possession by action of maills and duties, but the petitioners have now determined to sell the subjects and wind up the whole trust.

The petitioners therefore craved the Court, after the petition had been intimated, and served edictally on George Forrest, to authorise the petitioner Robert Foggo to manage the affairs of the trust and bring the same to a termination, and to grant all deeds necessary for executing the trust and bringing it to a termination, in terms of the foresaid trust-disposition and settlement, upon such caution, if any, as the Court might direct.

Reference was made by the petitioners to the following cases:— Miller and Others, Petitioners, January 19, 1854, 16 D. 358; Fraser, Petitioner, March 4, 1837, 15 S. 692.

At advising—