Scottish Court of Session Decisions

The facts of this case are fully stated in the opinion of the Lord Ordinary.

On 6th January 1897 the Lord Ordinary ( Kyllachy) assoilzied the defender from the conclusions of the action.

Opinion.—“The pursuer in this case is Sir William Robert Murray, baronet, who claims to be heir-at-law of General Sir John Murray, who died in 1827; and he brings the action to obtain an account of a certain trust-fund, consisting of the price of a Scotch estate, which fund on the death of Sir John was destined and became payable to his heirs and assignees. The trust was constituted by a certain marriage-contract dated in 1807. The estate was sold by the trustees, and the price received in 1814; and the pursuer's case is that the price was a heritable subject, and, however disposed of, has not been paid or accounted for to General Sir John Murray

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or his heirs-at-law. It was, the pursuer admits, carried by the settlement of his, the pursuer's, late father Sir Robert Murray, but he claims to be assignee under a certain writing to any interests created under that settlement.

The action is directed against Sir Alexander Muir Mackenzie of Delvine, as the heir-at-law of the late Sir Alexander Muir Mackenzie, the last survivor of the trustees, and as such heir ‘vested in the trust-estate created by said marriage-contract, so far as the same has not been discharged.’ It calls upon the defender to account for the trustees' intromissions, and, failing an account, to make payment to the pursuer of the sum of £14,530, being the alleged proceeds of the sale of the said estate. There is no averment that the defender has himself intromitted with the trust-estate. But the title under which the estate was held by the trustees contains a destination to the survivors of the trustees, and the heir of the last survivor, and this, according to the scheme of the action, makes the defender liable to account.

It seems a sufficient answer to the action as thus laid that the defender is not, and never was, a trustee under the marriage-contract, at least in any sense in which he can be liable to account. As heir-at-law of the last surviving trustee, he succeeded, it may be, to the trust-estate; and as such he might have been called as defender to any action of adjudication at the instance of the beneficiaries or a judicial factor. But he did not succeed to the office of trustee, or incur any liability by virtue merely of the destination in his favour—a destination whose only object was to preserve continuity in the title. Of course, if he had made up a title, he might have been required to denude; or if he had assumed possession, he might have been called to account. But nothing of that sort is, as I have said, alleged.

The case, however, was (no doubt for sufficient reasons) argued on the assumption that the liability really in question was a liability of a different kind, viz., a personal liability by the defender, as representing the last surviving trustee, to implement that trustee's obligations, including his liability to account for or make good this particular fund. And although I doubt whether this case is covered by the record—it in particular not being alleged that the defender does represent his grandfather so as to be liable for his debts—I am unwilling to throw out the action on what might appear to be a merely technical ground. I shall therefore assume what seemed to be admitted, that the defender does represent his grandfather, and also that the action is to be taken as directed against him in that view.

But then this at once brings up, and brings up in a comparatively simple form, the question of the negative prescription. It is not so stated on record, but it was ascertained and admitted in the course of the debate that the late Sir Alexander Mackenzie died in 1835, and that the defender's liability, if it now exists, was a liability which came into existence in that year—now more than forty years ago. I confess I am not able to see how, in that state of the facts, the negative prescription can be denied its ordinary effect. I heard an excellent argument on the question how far that prescription applies, or can apply, to claims of accounting under a trust—that is to say, to claims of beneficiaries against trustees; and reference was made to various points and distinctions which are to be found canvassed at length in the cases of Barns, 19 D. 626, and the previous cases of Pollock, M. 10,702, 2 Pat. App. 495; and Kinloch, M. Appx. Prescription No. 4, 5 Paton, 35. But if it be taken that the defender is here sued simply as his grandfather's representative, it does not seem to me that we have here to deal with any question of that sort. The defender is ex hypothesi not a trustee, and has never been so. He has not during; the period of prescription owed any duty to, or stood in any fiduciary relation to, the pursuer. The relation at the best has been only that of debtor and creditor. The claim against the defender, if it be a claim, is at best only a claim of debt, and that being so, I think there is an end of the matter.

It would have been a different question—I by no means say that the result would have been different—it is not necessary to decide that—but it would have been a different question if the body of trustees, or the last surviving trustee, had been still alive, and had been asked for accounts with reference to an intromission which occurred in 1814, and to a trust fund of which the trusts expired in 1827. I am far from saying that the negative prescription would not equally in that case have applied. But the present is, for the reasons I have explained, not a case of that kind at all.

It would also, I need hardly say, have been a different question if the fund, being admittedly extant, standing on a trust title (as, for example, invested in the trustees' names), the pursuer by declaratory adjudication or otherwise sought to vindicate the fund, and for that purpose brought an action against the defender, or (the trustees being still alive) brought a similar action against the trustees. That would of course be a different question altogether, and I am not to be taken as holding or even suggesting that the negative prescription could there be pleaded.

Lastly, while disposing of the case upon the ground I have now stated, I desire to add that I am by no means to be taken as affirming the pursuer's views as to the heritable character of this fund, or the validity of the title which, assuming it to be still extant, he sets up to it. Neither am I to be taken, on the other hand, as throwing any doubt on the defender's statements that, according to the best information he can obtain, the fund in question was properly paid over to General John Murray's executors on 10th April 1828. If that payment were proved, it

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would probably have been in itself conclusive, because these executors, it would seem, were or held for the pursuer's authors, but in the view I take it is not necessary, and would not be right, that I should put the defender to the expense which a proof would involve.”