Scottish Court of Session Decisions

(1) The Most Noble John Charles Montagu Douglas Scott, Knight of the Thistle, Duke of Buccleuch and Queensberry, and the Honourable Sir George Halsey Perley, K.C.M.G., formerly High Commissioner in London for the Dominion of Canada, 19 Victoria Street, Westminster, London, now residing in Ottawa, Canada, the surviving trustees acting under the declaration of trust after mentioned; and (2) the commissioners for Executing the Office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, presented a petition to the Court for authority to transfer certain funds to a trust therein

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named and for discharge of their intromissions as trustees.

The petition set forth—“That in or about July 1917 the War Pensions Statutory, &c., Committee of 22 Abingdon Street, London, handed over to the Commander-in-Chief, Coast of Scotland, a sum of £3000 sterling, being a portion of a larger sum collected in the Dominion of Canada for the benefit of the men of the British Navy, and designated ‘The British Sailors’ Relief Fund, Canada.’ Thereafter this sum of £3000 was handed over to the Duke of Buccleuch, Sir George Halsey Perley, High Commissioner in London for the Dominion of Canada, and Sir William Robertson, Lord-Lieutenant of Fife (now deceased), and a constitution of the fund, i.e., of the said sum of £3000, was established. It provides that (1) the fund shall be called ‘The Rosyth Royal Naval Depot Canadian Fund’; (2) the object is the rendering of temporary assistance in time of sickness, distress, or difficulty by the gifts of money or other necessaries to persons declared by the constitution to be eligible for assistance from the fund; (3) the following persons are eligible for assistance:—All ratings and ranks of the rank or equivalent rank of chief petty officer, and below that rank who may be in receipt of naval pay and their dependants. That it is further provided by said constitution that the capital of the fund shall be held by the trustees from time to time acting under the declaration of trust after mentioned, and that the income of the fund shall be administered by a council, such council to consist of.… That by declaration of trust, dated 23rd February and7th and 10th March, and registered in your Lordships' Books on 20th March, all in the year 1919, the Duke of Buccleuch, Sir George Halsey Perley, and Sir William Robertson declared that £3000 registered 5 per cent. National War Bonds 1927 (in the purchase of which the said sum of £3000 had been invested), and the securities in which the capital of the trust should thereafter from time to time be invested, were and shall be held by them and the survivor of them as trustees for the purposes set out in said declaration of trust, such purposes being as follows:—( First) For payment of such expenses of the trust as might be incurred in any year out of the income of the trust for said year; ( second) for payment of the balance of the income to the honorary treasurer of the council acting in terms of said constitution.… That at the time when said constitution was established and when said declaration of trust was signed Rosyth was a busy centre with a large naval population.… That the position of matters at Rosyth has now entirely changed. There is no longer any considerable naval population there.… There has not been a council for several years, there is not one now, and there is no prospect of there being one. Accordingly there is now a situation rendering the continued administration under the constitution and declaration of trust before referred to impossible in practice. That in these circumstances your petitioners desire that, if your Lordships approve, the trust estate in the hands of the survivors of the trustees under the said declaration of trust should be transferred to the Royal Naval Benevolent Trust (Grand Fleet and Kindred Funds) incorporated by Royal Charter.… It will also be seen from said charter that the objects of the Royal Naval Benevolent Trust (Grand Fleet and Kindred Funds) are—… These objects are similar to those specified in the Constitution of the Rosyth Royal Naval Depot Canadian Fund. The Royal Naval Benevolent Trust (Grand Fleet and Kindred Funds) is willing, if your Lordships approve, to accept the transfer of the trust estate and to administer same.”

The petition prayed the Court, inter alia—“To authorise and empower your petitioners the Duke of Buccleuch and Queens-berry and Sir George Halsey Perley, as surviving trustees acting in the trust constituted by said declaration of trust, to transfer the trust estate in their hands (under deduction of the expenses after mentioned) to the Royal Naval Benevolent Trust (Grand Fleet and Kindred Funds), and on same being transferred to declare the trust in the said Duke of Buccleuch and Queensberry and Sir George Halsey Perley at an end; to grant a discharge to the said Duke of Buccleuch and Queensberry and Sir George Halsey Perley, and to the representatives of the said Sir William Robertson, of their whole actings, intromissions, and management as trustees in the trust constituted by the said declaration of trust; and to find the petitioners entitled to the expenses of the present application and incident thereto out of the said trust estate; or to do further or otherwise in the premises as to your Lordships shall seem proper.”

On 22nd November 1923 the Court pronounced an interlocutor remitting to J. R. Dickson, Esq., Advocate, to inquire as to the facts and circumstances set forth in the petition, and to report.

The reporter stated, inter alia—“… The reporter is … of the opinion that the constitution of the Rosyth Fund has become unworkable, and that it no longer provides effective machinery for the distribution of the proceeds of the fund; that in the circumstances it is desirable that the money should be transferred to another body more fitted to deal with it; that the Royal Naval Benevolent Trust is the only body which has been suggested as suitable; that its transfer to this body would best ensure its being distributed in accordance with the intention of the donors and the principles under which it has hitherto been distributed. The Royal Naval Benevolent Trust has signified its willingness to take over the Rosyth Fund, and seems to have power under its charter to do so, even under conditions if the Court thought it advisable to attach any. None, however, suggest themselves to the reporter as being necessary or desirable. The petitioners further crave that they be granted a discharge. The reporter has been unable to find any authority in support of the granting of a discharge in a petition of this nature except the unreported case of Petition, Mitchell, which was presented to your Lordships of

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the Second Division in March 1021. In that petition the trustees of a mechanics' institute asked for authority to transfer the funds of the institute to a branch of the Young Men's Christian Association and for discharge. The reporter in the case, after calling the attention of the Court to the cases of Dundas ( 7 Macph. 670) and Rosebery ( 1892, 29 S.L.R. 865), advised that the exoneration should be refused on the grounds that the granting of exoneration and discharge on an ex parte application might embarrass the Court in the event of any item of expenditure being subsequently challenged. The Court, however, remitted the petitioners' accounts to the Accountant of Court, and thereafter on his report granted discharge. In the present case the accounts of the petitioners have not been audited, but it humbly appears to the reporter that it would in the circumstances be a reasonable and convenient course for the Court to follow the procedure adopted in Petition, Mitchell, and that there could be no practical objection to the granting of a discharge after an official audit.”

At the hearing in the summar roll counsel for the petitioners argued—The petitioners were entitled to the decree prayed for— Petition, Mitchell ( unreported, cit. per Reporter). The case of Dundas and Others, Petitioners, (1869) 7 Macph. 670, was distinguishable. In the case of The Earl of Rosebery and Others, Petitioners, (1892) 29 S.L.R. 865, the Court granted decree of exoneration and discharge (see ibid, at p. 867).