Scottish Court of Session Decisions

A petition was presented by Mr John Dick, trustee acting under the postnuptial contract of marriage and trust-settlement of

Page: 233↓

Mrs Janet Robertson and her husband, the late Dr George Robertson, and by the said Mrs Robertson and her son Cecil James Robertson, the beneficiaries under the trust, craving the Court “to remove Alexander Mitchell Carnwath Dick from the office of trustee under the said postnuptial contract of marriage and trust-settlement of the said Mrs Janet Train Lawrie or Robertson and George Robertson, or otherwise to appoint David Robertson as a trustee under said contract of marriage, with the powers contained therein, and in the statute, including a power to assume new trustees.” Dr Robertson died in 1883 survived by his wife, and Messrs John Dick, Peter Robertson, and William Milne accepted office as trustees, and continued to act as such till the death of the two last-named gentlemen. Thereafter in December 1886 Mr John Dick assumed his son Alexander Mitchell Carnwath Dick as a trustee under the trust.

The present petition was presented by Mr John Dick, with the concurrence of the liferentrix Mrs Robertson and of her son Cecil James Robertson, the only other beneficiary under the trust.

The petitioners averred “that in or about May 1897 the agent in the trust having forwarded to the said Alexander Mitchell Carnwath Dick for his approval a proposal for loan of part of the trust-funds, he, in answer, replied on 15th May 1897—‘Robertson's M.C. Trust. I return the proposal for loan of £300. I really do not see what's the good of me bothering with this trust, and do not longer wish to act as trustee. You can date my resignation therefore from the time of the last loan.’ Thereupon a formal minute of resignation was forwarded to him for his signature, but he has not signed or returned the said deed. That part of the trust investments consists of a bond for £150 over a property in Argyle Place, Edinburgh, which loan fell to be paid off in terms of notice at Martinmas 1899. A discharge of the said bond was on 31st October 1899 forwarded to the said Alexander Mitchell Carnwath Dick for his signature as trustee foresaid, and although requested to return the deed signed he refused to do so, or even to answer the communications. The want of the said discharge is causing loss and inconvenience not only to the trust but to the borrower. That the administration of the trust has thus been brought to a standstill, and will so remain unless the said Alexander Carnwath Dick is removed or some other person assumed to act along with him and the petitioner, the said John Dick.”

Answers were lodged by Alexander Dick, who denied that the administration of the trust had been brought to a standstill, or that he had refused to sign the discharge of the bond referred to by the petitioners. He stated that he had reason to complain of certain conduct of the agent of the trust, and averred that the sole object of the petition was to enable the trust to be brought to a close by paying over the trust funds to the petitioner Mr Cecil James Robertson, which course, he was of opinion, could not be safely followed till after the death of the liferentrix, and that he objected to the appointment of Mr David Robertson, who was the uncle of Mr Cecil Robertson, on that ground. After the presentation of the petition the discharge of the bond in question was duly signed by the respondent.

The petitioner argued that as the trust had come to a deadlock the respondent should be removed, or failing that course that a new trustee should be appointed to act along with himself and the respondent— Aikman and Others, Petitioners, Dec. 2, 1881, 9 R. 213.

The respondent in the course of the discussion intimated his willingness to assent to the assumption of Mr David Robertson as an additional trustee, on the understanding that he would follow the opinion of the Solicitor-General as to the winding up of the trust. He argued that the petition was uncalled for, and should be dismissed.