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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bunten and Robertson Petitioners [1894] ScotLR 31_305 (13 January 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0305.html
Cite as: [1894] ScotLR 31_305, [1894] SLR 31_305
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SCOTTISH_SLR_Court_of_Session
Page: 305↓
Court of Session Inner House First Division.
Facts:
A trust-disposition and settlement which did not expressly empower the trustees therein named to resign, contained a declaration that upon any of the trustees resigning, the remaining trustees should be bound to discharge the persons so resigning of their offices. By letter of instructions of later date than the trust-disposition and settlement the testator directed that a sum of £200 should be paid to each of his trustees who should accept and act as such. Held that power to resign was impliedly conferred upon the trustees by the settlement, and a petition by certain of the trustees for authority to resign refused as unnecessary.
Matthew Andrew Muir died on 23rd January 1880 leaving a trust-disposition and settlement dated 26th April 1876, whereby he conveyed his whole estates to the trustees therein named or who might be assumed into the trust. The deed did not expressly confer power upon the trustees to resign, but contained the following declaration:—“Declaring that upon any of the trustees, executors, and curators herein named, or to be nominated or assumed as aforesaid, resigning the said offices of trustee, executor, tutor, or curator, and accounting for his or their intromissions with my trust-estate, my remaining trustees or trustee, or if there be no remaining trustee, then the beneficiaries under the trust hereby created, are hereby empowered, and shall be bound to discharge the person or persons so resigning of his or their office or offices.” …
By separate letter of instructions dated 9th August 1879 the testator directed that a sum of £200 should be paid to each of his trustees and executors “who shall accept and act as such under my trust-disposition and settlement.”
In 1893 James Clark Bunten and Thomas Robertson, two of the trustees nominated under the above settlement, presented a petition to the Court, inter alia, for authority to resign.
Answers were lodged objecting to the other parts of the prayer of the petition being granted, but in so far as it craved authority to resign the petition was not opposed.
After certain procedure had taken place the petitioners moved the Court to grant them authority to resign.
At advising—
In these circumstances we are not called upon to exercise the jurisdiction given us by the Trusts Acts, and accordingly I think we should refuse the latter part of the prayer of the petition on that express ground.
The Court refused the part of the prayer of the petition in which authority to resign was craved “as unnecessary, having regard to the terms of the trust-disposition and settlement.”
Counsel for the Petitioners— Ure— Wilson. Agents— Davidson & Syme, W.S.
Counsel for the Respondents— C. S. Dickson— Aitken. Agents— Forrester & Davidson, W.S.
Counsel for W. J. Dundas, Curator ad litem to Beneficiaries under Mr Muir's Settlement, who were in Pupillarity— Blackburn. Agents— Dundas & Wilson, C.S.