Scottish Court of Session Decisions

By trust-disposition and settlement, dated 13th December 1883, Thomas Carroll, spirit-merchant, Dumfries, nominated Dean William Turner, parish priest, Dumfries, Hugh Cunningham, doctor of medicine, Dumfries, and Samuel Brown, writer in Dumfries, as his trustees, and conveyed his whole estates and effects to them in the ordinary form. He directed his trustees, inter alia, (1) to pay to his wife, should she survive him, the free annual proceeds of the trust-estate, along with the use of his household furniture during her lifetime, or until she should marry again; (2) upon her death or re-marriage, to hold the trust-estate for behoof of his son Patrick William Carroll, and any other lawful child or children he might leave; and (3) to divide the trust-estate equally among the said children upon the youngest of them attaining the age of twenty-one years. He also appointed the trustees to be tutors and curators to his children during their respective pupilarities and minorities.

The truster died in April 1885, leaving two children, viz., the above-named Patrick William Carroll, aged eleven, and Thomas John Carroll, the only child of his marriage with the petitioner Elizabeth Cairns. She was subsequently married to John Foggo, builder, Newton-on-Ayr.

All the above-named trustees accepted office, and acted in the trust till 1888, when they all resigned. Prior to their resignation they assumed two new trustees, of whom one only, James Smith Bell, solicitor, Dumfries, accepted office. Bell acted as sole trustee until November 1892, when he suddenly left this country for New Zealand. It was admitted that his management of the trust-estate had been unsatisfactory, and that legal proceedings had been taken to compel him to carry out the purposes of the trust. After his departure from Dumfries he was rendered notour bankrupt, and it was admitted at the bar that he had applied part of the trust-funds to his own purposes.

Before quitting the country Mr Bell executed two deeds, both in favour of Mr Thomas M'Gowan, solicitor, Dumfries, and Mr James Maxwell, solicitor, Dumfries—the one a power of attorney to enable them to wind-up his affairs, the other a deed of assumption whereby he assumed them as trustees under the said settlement of Thomas Carroll.

The present application to the Court of Session was made by Mrs Elizabeth Cairns or Carroll or Foggo, sometime wife of the truster, now wife of John Foggo, as tutor and administrator-in-law of her pupil son Thomas John Carroll. She stated, in addition to the facts above set forth, that in consequence of the want of proper management of the trust property the heritable creditors had entered into possession of the heritable subjects under a decree of maills and duties; and submitted that it was neceessary for the protection of the trust-estate and the interests of the beneficiaries that Messrs Bell, M'Gowan, and Maxwell be removed from the office of trustees, and that a judicial factor be appointed.

Answers to the petition were lodged by M'Gowan and Maxwell as trustees, and also by William Patrick Carroll as a beneficiary entitled to one-half of the trust-estate.

The trustees stated that the two deeds in question were sent from Teneriffe by Mr Bell without any previous knowledge or arrangement on their part, and were only received on 15th November last, at which date they knew nothing of the condition of Mr Bell's estate or of the trust. They submitted that the petition was premature and unnecessary, in respect that it was presented before they had reasonable time to consider whether they would accept the trust, and without notice being given to either of them, and further in respect that they had never been asked for information about the estate.

The beneficiary in his answers submitted that no allegation was made or could be made against the integrity and capacity of the trustees assumed by Mr Bell.

Argued for the petitioner—She objected to Bell's nominees acting at once as trustees and as his attorneys to administer his private affairs, because there might be a competition of interests between them in these two capacities. It was objected in the answers that the application was at the sole instance of the mother, and was not concurred in by two of the original trustees who were appointed tutors to the pupil under his father's settlement, and still held that office notwithstanding their resignation of their position as trustees— Johnston v. Henry-Anderson, November 16, 1892, 30 S.L.R. 97, was referred to on this point. [ Lord Kinnear—But even assuming that, is it suggested that the mother has not a sufficient interest to appeal to the Court for the protection of the pupil's interests? Mr Jameson then stated that he withdrew his objection to the title.]

Argued for the trustees—There was no connection between Bell and his nominees. They got the nomination and power of attorney sent them from Teneriffe, and accepted office in order to conserve the interests of the trust and save any assets of Bell's when this petition was at once launched against them. They were competently named by the sole trustee, and were supported by one of the beneficiaries. The estate would be put to considerable expense if it were to be judicially managed by the nominee of the widow, who had remarried

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and had an adverse interest. They were quite willing to resign the office of attorneys, but thought they should first communicate with Bell; but they objected to being removed from the trusteeship as quasi-suspect. There was no allegation against either of them to warrant removal.

Argued for W. P. Carroll—No defence was offered for Bell's conduct in the administration of the trust. But he was in titulo to make this appointment. The estate was in no peril, and there was no necessity to saddle it with the expenses of judicial management.

At advising—