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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v. Petitioner [1894] ScotLR 32_63 (17 November 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0063.html
Cite as: [1894] ScotLR 32_63, [1894] SLR 32_63
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SCOTTISH_SLR_Court_of_Session
Page: 63↓
Court of Session Inner House Second Division.
v.
Facts:
A trustee under a trust-disposition and settlement, who had accepted office and become entitled on doing so to a legacy of £100 under the trust-deed, petitioned the Court for authority to resign. He stated that he had accepted office under a misapprehension as to the duties involved; that, owing to the magnitude of the estate, the affairs of the trust, if properly attended to by him, were likely to occupy more of his time and attention than, as a man with heavy business cares and responsibilities of his own, he could afford to bestow on them; that he deemed it prudent, and for the best interests of the trust, that he should resign, and that he was willing to renounce his legacy, which had not yet been paid, if he was relieved of his trusteeship.
The Court refused the petition, holding that the petitioner had stated no sufficient reason to entitle the Court to allow him to resign.
Alison, February 3, 1886, 23 S.L.R. 362, distinguished.
Matthew Andrew Muir, ironfounder in Glasgow, died on 27th April 1894, leaving a trust-disposition and settlement by which he conveyed to Colin William Scott and others, as trustees, his whole means and estate for the purposes therein mentioned.
By the third purpose of the trust-deed the truster directed his trustees to make payment of £100tor expedient, they considered that th eo each of their own number who might accept office.
Four of the trustees nominated, including Colin William Scott, accepted the office conferred on them, and entered on the possession and management of the trust—estate.
Thereafter Scott presented a petition to the Court for authority to resign the office of trustee under the trust-disposition, and to find the expense of the application to form a proper charge against the trust—estate.
The petitioner stated—“The petitioner accepted office along with his co-trustees by minute of acceptance dated 21st and 28th May 1891, but finding that, owing to the magnitude of the trust-estate, the affairs of the trust, if properly attended to by him, were likely to occupy more of his time and attention than as a man with heavy business cares and responsibilities of his own he could afford to bestow on them, he deemed it prudent and to the best, interests of the trust that he should resign his trusteeship, and intimated his desire to do so by letter to the trustees' agent dated 25th June 1891. Having accepted office without legal advice and under misapprehension as to the duties involved, and not
Page: 64↓
having received payment of the legacy provided to him, the petitioner is willing to renounce the same provided he is relieved of his trusteeship. The trust not being gratuitous, the petitioner has no power to resign under the Trusts (Scotland) Act 1861, and the trust-deed does not provide for his resignation. The present application is therefore necessary.” The petitioner's co-trustees, who were called as respondents, lodged answers to the petition, in which they stated that, while they had no desire to prevent the petitioner resigning his office if the Court should hold that the facts of the case rendered such resignation competent and necessary or expedient, they considered that the trust-estate ought to be relieved of all expense arising from proceedings which the petitioner himself had needlessly occasioned.
Authority for petitioner— Alison, February 3, 1886, 23 S.L.R. 362.
At advising—
If the petitioner had been a gratuitous trustee, he would have been entitled under the Trusts Act of 1867 to resign provided he had fulfilled all his duties up to the date of resignation. But the Act expressly declares that a non-gratuitous trustee cannot resign by virtue of it. The petitioner is therefore not entitled to resign by virtue of the Act, as on accepting office he became entitled to £100 in terms of the trust-deed.
The only ground on which the petitioner asks for authority to resign is that which I have stated. He does not say that he is unable to perform the duties required of him. He does not state that the trust will suffer from causes over which he has no control if he is forced to continue in office. He only states that he now finds the duties of the trust will take more time than he is willing to devote to them.
There have been cases in which non—gratuitous trustees have been allowed to resign, but the Court in these cases considered that it was in the interests of the trust that the trustee should be allowed to resign. An example of such cases is that of Sir Archibald Alison, quoted by Mr Constable, whose duties in his profession made him necessarily inefficient as a trustee. But there is no such consideration in this case. The testator thought the petitioner a suitable person to administer the trust. We have no reason to doubt that he can fulfil the duties. The only ground on which he wishes to resign is that he thinks the duties too heavy. Such a ground is not sufficient to entitle us to interpone authority to his resignation.
The Court pronounced the following interlocutor:—
“In respect that no sufficient reason has been tendered entitling the petitioner to resign the office of trustee under the trust-disposition and settlement of the late Matthew Andrew Muir, Refuse the prayer of the petition, and decern: Find the petitioner liable for the expenses of this application and of the expenses incurred by his cotrustees.”
Counsel for the Petitioner — Constable. Agents— Livingston & Dickson, W.S.
Counsel for the Respondents— Dundas. Agents— W. & J. Burness, W.S.