Scottish Court of Session Decisions

This was a petition presented by Thomas Henderson Orphoot, testamentary trustee of Sir James Naesmyth of Posso, craving the Court to grant him power and authority to resign the office of trustee.

The testator died in October 1896, and the petitioner along with two other trustees nominated by the trust-disposition and settlement accepted office.

The purposes of the trust were (1) the payment of debts, death-bed and funeral expenses, and the expenses of the trust; (2) the payment of certain legacies, including one hundred guineas free of legacy-duty, to each of his trustees who might be willing to accept office; (3) the disposal of certain articles as specific legacies; (4) the payment of the interest of the whole capital to the testator's widow, and upon her death the realisation of the capital and its payment in fixed proportions to certain charitable institutions; and (5) the sale of any heritable property of the testator which his widow might not wish to retain.

The petitioner averred—“That the total means and estate left by the truster amounted to upwards of £87,000, of which the greater portion was invested by the deceased on investments of a nature which the trustees are not entitled to retain, and that accordingly they have been and are still in the course of realising these to the best advantage with a view to the reinvestment of the funds on securities within their powers.”

The petitioner further averred—“That your petitioner accepted office in ignorance of the magnitude of the trust-estate, and of the time and labour required for the proper management of so large a fund. He now finds that his official duties, which are varied and laborious, prevent him from giving proper attention to the affairs of the trust. Your petitioner is Sheriff- Substitute of the Lothians and Peebles at Peebles. He has the whole duties of his office in Peebles to discharge. In addition, upon three days of each week he requires to sit in Edinburgh in the Sheriff Summary and Bankruptcy Courts of Midlothian. On these days he has also to dispose of the whole of the miscellaneous and administrative business falling to the Sheriff-Substitutes of Midlothian, in so far as his time permits him to discharge that duty. Further, in each alternate month, in addition to the duties above mentioned, he sits in the Police Court of Edinburgh for three days of each week. These numerous and varied duties engross the whole of your petitioner's time. The result is that he cannot attend meetings of trustees, and that he is unable to bestow upon the multiplicity of questions which arise in connection with the large fund which the trustees require to administer, the time and consideration which these questions require. He is accordingly unable to discharge the duties of the office conferred upon him by the said trust- disposition and deed of settlement. It is not expedient in the interest of the trust that he should be obliged to remain in office. The trustees have only the statutory powers of investment. In these circumstances your petitioner desires to resign, and he makes this application to your Lordships for authority to do so. He has offered to repay the legacy of £105. That the trust not being a gratuitous one, the petitioner has no power to resign under the Trusts (Scotland) Act 1861, and the trust-deed does not provide for his resignation, so that if the petitioner is to be relieved of the office of trustee, he can only be so with the authority of your Lordships.”

Counsel for the petitioner cited Watson v. Crawcour, February 17, 1844, 6 D. 687,

Page: 652↓

per Lord Cunninghame, and Alison, February 3, 1886, 23 S.L.R. 362—[ Lord President—This application is made, is it not, on the distinct understanding that the legacy of 100 guineas is repaid?]