Scottish Court of Session Decisions

This petition was presented by William M'Creath and others, trustees under “The M'Clymont Trust,” petitioners. The circumstances in which it was brought are sufficiently set forth in the opinion of the Lord Ordinary ( Ashmore) infra.

Opinion.—“This is a petition by the trustees of ‘The M'Clymont Trust’ for authority to complete title in terms of section 24 of the Trusts (Scotland) Act 1921 to the trust estate of the late Mrs Ross.

The circumstances under which the petition is presented are as follows:—The late Mrs Ross, by holograph letters dated in 1879 and 1881, appointed trustees to hold £3000 provided by her, with instructions ( a) to make payment of the free annual proceeds to five liferenters and the survivors and survivor, and ( b) to convey the principal sum to the trustees under the trust settlement of her uncle, the late Archibald MacClymont, to be applied for the purposes of the trust created by his settlement.

The trustees nominated by Mrs Ross having died without assuming new trustees, on application to the Court new trustees were appointed.

All the trustees have now died without assuming new trustees, and all the life-renters under Mrs Ross's trust are also dead.

The sum of £3000 provided by Mrs Ross as aforesaid has been partly invested by her trustees in the purchase of heritable properties and in loans on heritable security, and the titles to these properties and securities have been completed in name of Mrs Ross's trustees.

In the events that have happened the petitioners, as the trustees acting under ‘the M'Clymont Trust,’ are entitled to a conveyance of Mrs Ross's said trust estate to be applied by them for the purposes of the M'Clymont Trust.

In these circumstances counsel for the petitioners maintained that section 24 of the Act of 1921 is applicable.

In my opinion authority to complete title in the summary method of the statutory provision founded on without reconstituting the lapsed trust is inappropriate in the circumstances.

The person who can take advantage of section 24 must either himself be entitled to the possession for his own absolute use of property which was vested in the trustees, or must have derived right from someone so entitled.

Now the petitioners are not in either of these positions. In the first place their right to the property is not absolute or unlimited. They are entitled to possession of it only as trustees for the purposes of the trust created by the will of the late Archibald MacClymont.

In that respect the case is in contrast with the case of Trotter, 1895, 3 S.L.T. 57.

Secondly, the alternative provision of section 24 is inapplicable, and indeed counsel for the petitioners did not found on it. I may explain, however, that in my opinion it represents an extension of the scope of the analogous section, viz., section 14, of the Trusts Act 1867, so as to include the assignee of a beneficiary under a lapsed trust—an

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extension, no doubt, consequent on the decision in MacKnight ( 1875, 2 R. 667) to the effect that a petition under section 14 at the instance of an. assignee of the proper beneficiary under the trust was incompetent. In the present case, however, the petitioners do not, and as I think cannot, found on a derivative right of the kind referred to in section 24.

For the reason which I have given I must refuse the remedy sought by the petitioners.”

The petitioners reclaimed, and cited the cases of MacKnight, 2 R. 667, and Trotter, 1895, 3 S.L.T. 57.

At advising—