Scottish Court of Session Decisions

Dr Howie died on 11th January 1884. He left a will whereby he appointed his brother John Howie to be his sole executor and universal disponee, and bequeathed him his whole estate and effects, but in trust always for the following purposes—(1) Payment of debts; and (2) that the income and part or whole of the capital of the estate should be applied for the maintenance and education of his (Dr Howie's) two daughters, Anne and Jeanie, in such shares and proportions as his trustee might think proper, and that if any balance remained at their majority or marriage, the same should be payable to them in equal shares, and that in the event of the decease of one, the balance should be payable to the survivor, whom failing his heirs whomsoever. The truster also nominated John Howie to be tutor and curator to his said daughters.

Dr Howie was survived by both his daughters. After his death his brother John Howie accepted the office of trustee and tutor and curator, and entered on the administration of the trust. Dr Howie's estate was given up as amounting to £736, and his daughters were also entitled at the date of his decease to a sum of £1500 from

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the estate of their maternal grandfather. This latter fund was administered by John Howie along with the estate left by Dr Howie.

In June 1893 Dr Howie's daughters being then aged eleven and ten respectively, their aunt Miss Maggie Harris, with whom they had lived since their father's death, presented a petition craving the Court to sequestrate the trust-estate, to remove John Howie from the offices of trustee and tutor and curator, and to appoint a judicial factor.

The petitioner averred, inter alia—“It has been ascertained that some time after Dr Howie's death the said John Howie junior paid away to his father John Howie senior, out of the funds under his charge, as trustee and as tutor and curator, a sum of £175 or thereby in discharge of a pretended claim by the said John Howie senior for expenses of aliment and education alleged to have been incurred on behalf of the deceased Dr Howie, his son. The said John Howie senior was taken before a J.P., and swore to the correctness of his account, which was then paid.” The petitioner also complained that the income hitherto received by her from John Howie for behoof of Dr Howie's daughters did not exceed £57, 10s. per annum, and that John Howie refused to increase this allowance, though, as she alleged, it was impossible to continue their upbringing on so small an expenditure. She expressed the belief that John Howie's conduct in refusing to increase the allowance for the children's maintenance was partly due to the fact that in the event of the death of the children, who were not in robust health, he would himself succeed to a considerable part of the estate under his charge.

John Howie lodged answers in which, inter alia, he averred—“In his early days Dr Howie, after being educated as a pupil teacher, desired to attend college and qualify himself as a doctor of medicine. As he was possessed of no funds, and his father, who was a builder in Alyth, was comparatively a poor man, it was arranged between them that Dr Howie should keep a pass-book, in which he was to enter all the advances made by his father towards his board and college expenses. Dr Howie did so—the advances, as shown by the passbook, amounting to £183, 17s. 6d. When on his deathbed, Dr Howie sent for the respondent, whom he had appointed his sole trustee and executor, exhibited to him the pass-book, and charged him to repay out of his estate to his father the amount of the advances made by him. After the said John Howie senior filed an affidavit and claim before a Justice of the Peace for the above advances, and emitted an oath as to the correctness thereof, the respondent, acting on the instructions given by the deceased, paid the same. The passbook, affidavit and claim are herewith produced and referred to.” He submitted that the prayer of the petition should be refused.

The pass-book produced contained entries of sums received and expended by Dr Howie while he was at college. Various sums were entered as having been received from his father; other sums as received from other members of his family or from himself; while certain sums were entered merely as cash received, without any statement of the source from which they were derived. The father's claim included both the sums entered as received from him and also the sums entered merely as cash received.

Argued for the petitioner — Advances made by a father to a son for the son's education or to start him in life create no debt exigible from the son unless the son has granted a written obligation to repay the sums advanced— Nisbet's Trustees v. Nisbet, March 10, 1868, 6 Macph. 567. [ Lord Kinnear—In Williamson v. Allan, May 29, 1882, 9 R. 859, it was laid down that a written acknowledgment by a son of the receipt of money from his father opened the door to the admission of evidence of the animus with which the money had been given by the father.] There was here no such writ under the son's hand as to instruct the claim made by the father. Apart from the fact that the parties stood in the relation of father and son, the writ here relied on was jottings in an account-book, and these were not sufficient to instruct a loan— Wink v. Speirs, March 23, 1868, 6 Macph. 657. Further, the sum paid to the father included sums which were not entered in the account-book as having been received from him. In paying the father's claim the respondent had sacrificed the interests of the estate in his charge, and had committed a breach of trust. A sufficient case had therefore been made out for the trustee's removal — M'Whirter v. Latta, November 15, 1889, 17 R. 68, per Lord Lee, 71. But if the Court thought it preferable they might adopt the course followed in a recent case, and sequestrate the estate without removing the trustee— Stewart v. Morrison, July 14, 1892, 19 R. 1009.

Argued for the respondent—Before the Court could grant this petition they must be satisfied that there had been distinct malversation on the part of the trustee— Gilchrist's Trustees v. Dick, October 20, 1883, 11 R. 22; Taylors v. Horn and Others, July 18, 1857, 19 D. 1097. But there was no allegation here that the payment complained of had been made dishonestly and not in bona fide, and the petitioner's case therefore failed. Further, the trustee had acted rightly in paying the father's claim, as it was a proper debt legally exigible from the son's estate. If the advances were to be treated as a slump transaction, the debt was sufficiently vouched under the son's hand, and if they were to be taken separately, they were mostly under £8, 6s. 8d. and parole proof was competent.

At advising—