Scottish Court of Session Decisions

Mrs Agnes Johnston, Blairgowrie, as mother and guardian under the Guardianship of Infants Act 1886 of her pupil son William Low Johnston (his father having died), sued Isaac Henry-Anderson, S.S.C., Blairgowrie, John Soutar Baxter, and Dr Charles Smith Lunan, trustees and executors of the late Margaret Johnston of Welton, for an account of their intromissions as trustees and executors, and for payment to the pursuer of a sum of £1250 as one-fourth of the residue of Miss Margaret Johnston's estate.

Margaret Johnston died at Edinburgh on 14th July 1890. She left a trust-disposition and settlement dated 27th January 1887, whereby she disponed her whole estate, heritable and moveable, to Isaac Henry-Anderson, S.S.C., Blairgowrie, John Soutar Baxter, and Dr Charles Smith Lunan, as trustees, and directed them to convert her whole estate into money, and dispose of the same as follows—“One-half of the free rest and residue of my estate to my said nephew William Low Johnston, payable on his attaining the full and complete age of twenty-five years, but until he attains that age my trustees shall hold the capital in trust, and apply in such sums and in such way as they deem most expedient, the annual interest, or a part therof, for his maintenance and upbringing, but with power to said trustees, if they think proper, to advance to the said William Low Johnston, prior to his attaining said age, a part of the capital not exceeding one-half in starting him in business or otherwise starting him in life, but which discretion will lie wholly with my said trustees, whom I hereby appoint to be tutors and curators to him until he attains said age of twenty-five years complete; but declaring, in the event of the said William Low Johnston dying without leaving lawful issue of his body before attaining the said age, his said share of my estate shall fall to the parties after-named, being the children of my brother James Johnston, and the said James Johnston, and shall be divided among them in the same proportions as their own share is to be divided as hereinafter set forth; and the remaining half of said residue shall be held, applied, and disposed of by my said trustees to and for behoof of the children of my said brother James Johnston, and to himself, in the proportions following.”

By a codicil of 2nd July 1889 the testatrix cancelled and annulled “the whole provisions therein contained in favour of my brother James Johnston, and also of his children nominatim, in the said deed above written, and in lieu thereof I leave to the said James Johnston a sum of £100 sterling in full of all he can claim, and in the event of his challenging this codicil, this bequest of £100 will be held as null and void; and

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with regard to the residue of my estate, so far as the said James Johnston and his children were interested under the said trust-disposition and settlement, in the event of my death before executing a new settlement, such residue will be disposed of amongst those of my relatives according to their legal rights.” Her heirs in mobilibus at the date of her death were James Johnston, her brother, and William Low Johnston, her nephew.

A special case was submitted by the defenders of the first part, the said James Johnston of the second part, and the said William Low Johnston and the pursuer, as his mother and guardian or tutrix foresaid, of the third part, to the First Division of the Court of Session in January 1891. In this special case the parties asked the opinion and judgment of the Court upon, inter alia, the questions—“(1) Whether the half of the residue bequeathed to William Low Johnston by the said trust-disposition and settlement vested in him a morte testatoris? (2) Whether the other half of the residue fell to be equally divided between the said James Johnston and William Low Johnston?” On 13th May 1891 the Lords of the First Division of the Court of Session answered these two questions in the affirmative, and found and declared accordingly, and found it unnecessary to answer the other questions stated in the case. By this judgment it was decided that the one-half of the residue directed under the fifth purpose of said trust-disposition and settlement to be held in trust for William Low Johnston was now vested in him, although the period of payment was postponed until he attained the age of twenty-five years; and that one-fourth of the residue, viz., one-half of the other half of said residue, belonged in virtue of the codicil absolutely at the present time to William Low Johnston.

At a meeting of the trustees upon 17th November 1891, Mr Baxter and Dr Lunan declined to accept the office of tutors and curators, and upon 20th November the remaining trustee, Mr Anderson, intimated to his co-trustees his acceptance of the offices. He thereafter received payment of the share falling to the pupil under the decision in the special case, viz., £1249, 12s. 4d., and granted a discharge therefor to the trustees. Mrs Johnston then raised this action in the Sheriff Court at Perth to have the sum handed over to her.

The pursuer pleaded—“(1) The defenders are bound to count and reckon with the pursuer for their intromissions with the estate of Margaret Johnston, and the pursuer is entitled to decree for the one-fourth of the residue payable to the said William Low Johnston in virtue of the said codicil, with expenses. (2) The alleged acceptance of the office of tutor and curator by Mr Anderson, and the alleged authority to pay to and discharge by him, are invalid and of no effect—1st. Because the appointment of tutors and curators in the settlement does not apply to the subject-matter of this action. 2nd. Because, even supposing the appointment to apply thereto, the defenders declined the office, at least so far as the subject-matter of this action is concerned; and 3rd. Because the pursuer is the only legal guardian of his son, so far as the subject-matter of this action is concerned, and has been recognised and treated as such by the defenders, and in particular by the defender Mr Anderson, who alone of the defenders now claims the office.”

The defenders pleaded—“(2) There being an acting tutor-nominate to the pupil, and the pursuer not being that person, she has no title to sue the present action. (3) The trustees having paid the one-fourth share of residue at present falling to the pupil, in terms of the testatrix's codicil to the tutor-nominate, and having obtained a valid discharge therefor, the present action of count and reckoning and payment is outwith the powers of the pursuer, incompetent, irrelevant, and uncalled for, and the defenders should be assoilzied, with expenses against the pursuer.”

Upon 10th March 1892 the Sheriff-Substitute ( Grahame) issued an interlocutor by which he found “that up to 17th November, when the defender Anderson accepted said office, none of the defenders had declined the office of tutors and curators to the said W. L. Johnston nor had acted in any way so as to bar their acceptance of that office, and that at said date it was still open to them all or any of them to accept said office, and finds that the defender Anderson, having then accepted that office and having thereafter acted therein the pursuer is not, as mother of the said William Low Johnston, and his legal guardian under the Guardianship of Infants Act 1886, entitled to sue the defenders for count, reckoning, and payment to her of her said son's share of the residue of Miss Johnston's estate due to him under his aunt's settlement and relative codicil as concluded for in this action: Therefore assoilzies the defenders from the conclusions of the action.”

Upon appeal the Sheriff ( Jameson) adhered.

The pursuer appealed, and argued—Mr Anderson's only claim to the office of tutor and curator was the nomination in the trust-settlement. This was, however, a joint appointment of the whole trustees as tutors and curators, and if that was so, then the law was clear that in order to make a valid acceptance the whole body jointly nominated must accept, and not merely one of their body. The appointment of tutors in this case applied solely to the administration of the estate left by the trust-settlement, as the appointment of testamentary tutors rests solely with the father. The trustees were here appointed tutors and curators with the view of enabling them to carry out the work of administering the estate committed to their discretion with more fulness, and must be read as meaning that the trustees and the tutors and curators were always to be the same persons—Ersk. Inst. i. 7, 2. (2) Even if Anderson had validly accepted the office of tutor, the sum in question did not fall under his management. By the decision in the

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special case— Johnston's Trustees v. Johnston, May 13, 1891, 18 R. 823—it was plain that what passed to the heirs in mobilibus was the half share of the testatrix's estate formerly left to James Johnston, but the destination of which was changed by the codicil. The phrase “my relatives, according to their legal rights,” was of no value in giving any undisposed-of estate to the heirs in intestacy. The estate would have been divided among the relatives according to their legal rights without these words being in the codicil. Accordingly the nephew took this sum of £1250 as heir ab intestato, and therefore the tutor could have no claim to its administration.

The respondent argued—The acceptance by Anderson was good. The nomination of the trustees as tutors and curators was the nomination of the individual trustees, not of the whole body, and if it was not expressly stated to be a joint nomination, then any single member of the whole number of trustees could accept as tutor— Elleis v. Scott, February 14, 1672, M. 14,695; Young v. Watson & Syme, November 7, 1740, M. 16,346. It was admitted that the tutor's right to administer extended only to the estate given by the testatrix to him by settlement. But the trustees were appointed over her whole estate, not only what she left by the settlement, but also what she left by the codicil. This £1250 was part of the estate left by the codicil, and therefore fell under the trustees' charge, and as under the decision in the special case it was immediately payable, their only duty was to hand it over to the accepting tutor.

At advising—