Scottish Court of Session Decisions

The Trusts (Scotland) Amendment Act 1891 (54 and 55 Vict. c. 44) by sec. 1 enacts that this Act and the previous Trust Acts “may be cited as the Trusts (Scotland) Acts 1861 to 1891, and shall be read and construed together.” Sec. 2 enacts—“For the purposes of this Act … the expression ‘the Court’ shall mean any court of competent jurisdiction in which a question relative to the actings, liability, or removal of a trustee comes to be tried.” Sec. 8 enacts—“In the event of any trustee being or becoming insane or incapable of acting by reason of physical or mental disability … such trustee, in the case of insanity or incapacity of acting by reason of physical or mental disability, shall… on application, in manner hereinafter mentioned, by any co-trustee or any beneficiary in the trust-estate, be removed from office upon such evidence as shall satisfy the Court of the insanity, incapacity, &c. … of such trustee. Such application in the case of a mortis causa trust may be made either to the Court of Session or to the Sheriff Court from which the original confirmation of the trustees as executors issued; and in the case of a marriage-contract,

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may be made either to the Court of Session or to the Sheriff Court of the district in which the spouses are or the survivor of them is domiciled; and in all other cases shall be made to the Court of Session.”

A petition was presented in July 1895 to the First Division of the Court of Session, by James Tod, 16 Royal Terrace, Edinburgh, and J. B. M'Intosh, S.S.C., Edinburgh, the sole surviving trustees acting under the trust-disposition and settlement of the late John Marshall, S.S.C., Edinburgh, praying the Court to authorise Mr Tod to resign, or alternatively to remove him from office. The petition set forth that Mr Tod, not being a gratuitous trustee, could not resign without the sanction of the Court, but that, even if such sanction were given, he was incapable from physical and mental disability of attending to any business, and a medical certificate to that effect was produced.

Answers were lodged by one of the beneficiaries under the trust, objecting to the petition being granted until the other trustee had made arrangements for the assumption of suitable persons as new trustees.

Argued for the petitioners—When the petition was lodged it was thought that Mr Tod could have resigned upon receiving authority to do so, but his health now precluded him from executing any deed whatever. Although no reference was made in the petition to the Trusts Act 1891, it was competent for, and indeed incumbent upon, the Court, before whom the present petition had been properly presented, to have respect to the provisions of that Act, and in terms of section 8 to remove Mr Tod.

Argued for the respondent—It was incompetent for the Court to remove Mr Tod under this petition, which made no reference to the Trusts Act 1891, and which was an application to the Court for the exercise of their nobile officium. If advantage were to be taken of the Trusts Act 1891, a petition should have been presented to the Junior Lord Ordinary. This appears from section 16 of the Trusts (Scotland) Act 1867, which provides that applications under that Act are to be brought, in the first instance, before the Lord Ordinary. Section 1 of the Act of 1891 provides that that Act and the Act of 1867 are to be construed together, and section 16 of the earlier Act therefore applies to applications under the later Act.

At advising—