Scottish Court of Session Decisions

Mrs Alice Adamson or Cherry, widow of James Cherry, and the Reverend Alexander Copland, two of the four testamentary trustees of the said James Cherry, presented a petition to the Court for the removal from office of Hugh Patrick another trustee. The fourth trustee was a Mr Robert Paton. The truster had been interested to the extent of one-third in a public-house business at 362 Main Street, Bridgeton, Glasgow, the remaining two-thirds interest belonging to Mr Patrick.

The petitioners, inter alia, averred—“For some time after the trust came into existence matters proceeded smoothly, but latterly there has been much friction among the trustees, and the affairs of the trust have now been brought to a standstill. In January 1909 Mr Patrick made a claim against the trustees in connection with the late Mr Cherry's management of the business at 362 Main Street, Bridgeton, Glasgow. This claim, which was originally for £500, was put later at £306, 3s. 9d., and in an action at present pending in the Court of Session by Mr Patrick against the trustees it is stated at £283, 18s. 6d. A print of the record in this action, showing the nature of the claim, is herewith produced and referred to. [ From this it appeared that the claim involved a charge of dishonesty against Mr Cherry.] No details of the claim have ever been submitted to the trustees. The petitioners consider that Mr Patrick ought not to take part in the consideration of this claim, both because it is a claim made by himself against the trust estate, and also because it involves a charge by him of personal dishonesty against the late Mr Cherry. They have, accordingly, asked him to resign office as a trustee before consideration of the claim is taken up. He declines to do so, however, and in this attitude he is supported by Mr Paton, so that there is a deadlock in the administration of the trust.”

Answers were lodged for the respondent in which he stated, inter alia—“The respondent has always been willing and anxious to perform his duty as a trustee under the said trust-disposition and settlement, and there is no ground for the demand made by the petitioners that he should resign or for his removal. There is no antagonism between his interest as a trustee and as an individual, and the respondent is quite able and willing to perform his duties as trustee without any prejudice being suffered by the said trust estate.”

Argued for the petitioners—The position of the respondent suing the trust made it impossible for him to remain as trustee.

Argued for the respondent—No deadlock had occurred and no charge of dishonesty or fraud was made against the respondent. In these circumstances there was no good ground and no precedent for removing him from office.