Scottish Court of Session Decisions

By a marriage-contract entered into between Henry Lamont and Mrs Jane Curle or Lamont, Henry Lamont assigned to trustees (to whom powers were given to assume new trustees) a policy of insurance for £2000, the purposes of the trust being the payment of an annuity of £200 to his widow, and upon her death the payment of the fee to the issue of the marriage. By the marriage-contract Mrs Lamont assigned to the trustees her whole means and estate to be held for herself, and, after her death, her husband in liferent, and to be paid to the issue of the marriage in fee. At the date of the truster's death the only surviving trustee was his brother Charles Lamont, the other trustees having predeceased the truster, and no additional trustees having been assumed.

Shortly after his death his widow and four of his children presented a petition to the Inner House craving the Court to remove Charles Lamont from his office of trustee, and to nominate and appoint as new trustees the persons who were the trustees under the trust-disposition and settlement of the deceased Henry Lamont. These included three of the petitioners, viz., the widow and two of the children.

In his trust-disposition and settlement Henry Lamont had expressly directed his trustees to fulfil all the obligations incumbent upon him under his marriage-contract.

The grounds upon which the petitioners asked for the removal of Charles Lamont were that he was a bankrupt, and otherwise a person incapable of properly managing the estate.

Charles Lamont lodged answers, in which he objected to being removed.

Henry Charles Lamont, a son of Henry Lamont, also lodged answers, and while not opposing the prayer for the removal of Charles Lamont, objected to the appointment of Henry Lamont's testamentary trustees, stating that he was “dissatisfied with the course of administration pursued by the trustees in regard to part of the said Henry Lamont's affairs.” He suggested the appointment of a judicial factor.

Argued for the petitioners—On the question of the appointment of new trustees or a judicial factor—Under the nobile officium the Court had the power to appoint new trustees; they were not restricted to appointing a judicial factor—M'Laren's Wills and Succession, vol. ii, p. 1132, and following; Menzies on Trustees, vol. i, p. 36; Aikman, &c. v. Duff, December 2, 1881, 9 R. 213, 19 S.L.R. 160; Miller and Others v. Black's Trustees, July 14, 1837, 2 S. & M'L. 866, affirming 14 S. 555. The appointment of a judicial factor meant increased expense and double administration, and the interests of all the beneficiaries, and the wishes of the deceased Henry Lamont would not be furthered by the appointment of his testamentary trustees.

Argued for the respondent Henry Charles Lamont—A judicial factor should be appointed, the Court having no right or power to appoint trustees in the circumstances disclosed, and there being no reported case in which in analogous circumstances it had ever done so. It was of no avail to appeal to the nobile officium, for the Court only exercised the nobile officium on the lines and within the bounds established by precedent—Stair's Inst. iv, 31—and there was no precedent for the exercise now demanded by the petitioners. Section 12 of the Trusts (Scotland) Act 1867 empowered the Court to appoint new trustees in circumstances specified. The reasonable inference from that section was that except in the circumstances therein specified, and except in a petition brought under that section, the Court had no power of appointment. None of the circumstances provided for in that section were present in this case, and the present was not a petition under that section. There was nothing to prevent the assumption of new trustees under the trust-deed itself. See Graham, June 26, 1868, 6 Macph. 958. The usual and only proper course was to appoint a judicial factor. Miller, cit. sup., was a case of a lapsed trust, and in Aikman there was an agreement that there were to be new trustees.

The Court granted the prayer of the petition and removed the trustee, and appointed the trustees under the deceased's trust-disposition and settlement to be trustees under his marriage-contract.