Scottish Court of Session Decisions

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Cite as: [1898] ScotLR 35_699, [1898] SLR 35_699

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SCOTTISH_SLR_Court_of_Session

Page: 699↓

Court of Session Inner House First Division.

Wednesday, May 25. 1898.

35 SLR 699

Ross

v.

Macpherson.

Subject_1Expenses
Subject_2Action for Reduction of Will Unsuccessfully Defended
Subject_3Allegations against Character of Trustees.
Facts:

An action raised for the reduction of a will contained certain allegations with reference to the impetration of the will against the character of gentlemen who were nominated as trustees thereunder. The action was defended by the trustees, unsuccessfully as regards the will, which was reduced by the verdict of a jury, but there was a special finding exonerating the trustees from the charges made against them. Held that they were entitled to expenses out of the trust estate.

Headnote:

An action was raised by Donald Ross, ploughman, North Cadboll, parish of Fearn, in the county of Ross and Cromarty, against the Rev. Lewis Macpherson, minister of the parish, and Mr John Mackenzie, town-clerk of Mackenzie, as trustees under “a pretended trust—disposition and settlement by the late William Ross,” the pursuers brother, dated 14th July 1896, and as individuals.

The summons concluded for reduction of this trust-disposition. The averments of the pursuer contained serious allegations upon the character of these defenders, to the effect that they had fraudulently impetrated the will from the deceased William Ross. Defences were lodged by Mr Macpherson and Mr Mackenzie.

The case was tried before the Lord President and a jury on March the 14th and 15th, upon the following issues—“1. Whether the trust-disposition and settlement of 14th July 1896, of which reduction is sought, is not the deed of the said deceased William Ross. 2. Whether on or about the 14th July 1896, the said deceased William Ross was weak and facile in mind and easily imposed upon; and whether the defenders Lewis Macpherson and John Mackenzie, taking advantage of the said weakness and facility, did, by fraud and circumvention, obtain or procure from the said William Ross the said trust-disposition and settlement to the lesion of the said William Ross.”

The jury returned the following verdict—“Find for the pursuer by a majority of nine to three on the first issue, and by the same majority find that the deceased William Ross was of weak mind but unanimously exonerate the defenders from all charges contained in the second issue.”

On the pursuer moving the Court to apply the verdict of the jury, he asked for expenses against the trustees personally, on the ground that they had been unsuccessful in defending the action, and that they had had no sufficient reasons for defending, the allegations as to their character contained in the record not having been before the jury.

Page: 700↓

The defenders objected, and moved that they should be allowed to retain their own expenses out of the trust estate. They argued that their conduct had been reasonable, and that they had been in good faith in defending the action, more especially as a very serious attack was made upon their own character. The pursuer had withdrawn certain of the charges, and the defenders had been completely exonerated by the jury. It was a question of circumstances whether trustees who had unsuccessfully defended a trust—deed were entitled to their expenses— Watson v. Watson's Trustees, January 20, 1875, 2 R. 344.

Judgment:

Lord President—The jury have given a special verdict. On the first issue they find in general terms for the pursuer; but on the second issue they do not find for the pursuer, but “find that the deceased William Ross was of weak mind, but unanimously exonerate the defenders from all charges contained in the second issue.” It seems to me that we must give at all events equal, if not greater, deference to the special finding upon the question of fact, more especially when the question is one of conduct. Now, on the assumption of the soundness of the jury's verdict, the position is that these gentlemen, the defenders, acted honestly and rightly in relation to this will, and it follow's that they were right in accepting the trusteeship purported to be imposed upon them by the will. The facts are peculiar in this respect, that the charges from which these gentlemen are exonerated are exactly the charges which apply to the inception of the will, and to the accepting of the trusteeship, and we could not hold that the views of the jury were correct, and at the same time that the trustees were blameworthy, and were not entitled to be indemnified out of the estate from the consequences of this action. I must own that I have some difficulty in harmonising, or conjecturing any harmony between, the jury's finding in fact and the implications contained in their findings in favour of the pursuer on the two issues, but I am disposed to think that they may have considered there was some strain of insanity in the testator, which, though occult, none the less disabled him from executing a valid testament. I do not say that is my own view of the facts, but state the theory, because some such theory is necessary as a condition of the argument upon the question of expenses. On the other hand, my own view, as well as that of the jury, is that these gentlemen acted rightly, and accordingly I am of opinion that they are entitled to be indemnified out of the estate.

Lord M'Laren—I am of the same opinion. It seems to me that when the character of trustees is impugned in an action of this nature, if they are honest men they are bound to defend their character. If the verdict is in their favour on the question of fraud and circumvention, I think it would not be equitable under any circumstances that the trustees should be subjected to an award of expenses. As to whether the defenders are also entitled to have their expenses paid out of the trust estate, I should be guided by the impression formed by the presiding judge as to the merits of the action. In the present case I have no hesitation in agreeing with your Lordship in the chair.

Lord Adam and Lord Kinnear concurred.

The Court pronounced the following interlocutor:—

“Apply the verdict … and in respect of the finding upon the first issue reduce the trust-disposition and settlement: Find the defenders entitled to retain their expenses out of the trust estate, also find the pursuer entitled to his expenses out of the trust estate.”

Counsel:

Counsel for the Pursuer— A. J. Young— Macaulay Smith. Agent— George M. Leys, Solicitor.

Counsel for the Defenders— Guthrie, Q.C.— Kennedy. Agents— Morton, Smart, & Macdonald, W.S.
1898