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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mrs. Jessie Maclean or Morrison and Others v. Allan Maclean and Others (Colonel Maclean's Trustees) [1865] UKHL 2_Paterson_1325 (8 March 1865)
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Cite as: [1865] UKHL 2_Paterson_1325
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SCOTTISH_HoL
Page: 1325↓
(1865) 2 Paterson 1325
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 34
v.
Subject_Trust — Resignation of Trustees during Action — Continuation of Action — Judge's Notes of Trial —
M. by trust disposition, conveyed his whole estate to eight trustees, declaring, that any one desirous of withdrawing should have power to do so at pleasure, by intimating his relinquishment to his co-trustees. After M's death his next of kin raised an action against the eight trustees to reduce his settlement on the ground of insanity, and after a verdict for the pursuers, six of the trustees, by letter to the agent of the trust, intimated their withdrawal.
Held, That the two continuing trustees had sufficient title to carry on the action, and apply for and obtain a new trial.
Held Further, That it was no objection to the rule being made absolute for a new trial, that the agent of the trustees revised and filled up some blanks in the fudge's notes of the trial before they were produced in Court. 1
In 1859 an action was raised by Mrs. Jessie Maclean or Morrison of Bunessan, in the island of Mull, widow of James Morrison, sometime merchant there, and others, against Dr. Charles Maclean, Inspector General of Her Majesty's Medical Department, Dublin, Major General Allan Maclean, and others, the accepting trustees of the deceased Lieutenant Colonel Alexander Maclean of Millport, in the island of the Greater Cumbrae, seeking to reduce certain pretended trust deeds of settlement purporting to have been executed by the late Alexander Maclean. The condescendence set forth, that Alexander Maclean died in 1859, at the age of eighty or thereby. Some years previous to his death, he went to reside in the Greater Cumbrae. He was unmarried, but for some years before his death cohabited with a young woman of small degree, called Jessie Macdonald, who afterwards married Hugh Crawford, one of the defenders, and who continued to live after her said marriage, as she previously had done, with Alexander Maclean, ostensibly as his housekeeper, at Millport. That during some years previous to his death, Alexander Maclean was insane and subject to fits, and upon his death the pursuers wished to have a
post mortem examination, with a view to detect a disease of the brain; but the defenders, his pretended trustees, resisted. During his latter years, Alexander Maclean lived secluded from his friends, against whom he had conceived an irrational hatred, which was fostered by the said Jessie Macdonald. Alexander Maclean left a trust deed or settlement and codicils. The trust deed
_________________ Footnote _________________
1 See previous reports
24 D. 625:
1 Macph. 304:
33 Sc. Jur. 480:
34 Sc. Jur. 311:
35 Sc. Jur. 205.
S. C. 3 Macph. H. L. 42;
37 Sc. Jur. 467.
Page: 1326↓
The trustees in their defences alleged, that the testator was of sound disposing mind, and that the instruments were his deliberate acts. The pursuers thereafter raised a second action, including several other writs of the testator not before mentioned.
The record having been closed, thirteen issues were afterwards adjusted as to whether the trust deed was the deed of Alexander Maclean, whether it was obtained by fraud and circumvention, etc. The trial took place before the Lord Justice Clerk Inglis, in August 1861, when the jury found unanimously for the pursuers on all the issues. Soon after the result of the trial it appeared, that six out of the eight trustees who had accepted the trust resigned their office, and refused to join the other two in an application which was about to be made for a new trial. The two trustees who applied for the new trial were General Allan Maclean and Alexander Maclean of Pennycross. The agent of the trustees gave notice of the application for a new trial in the name of the above two gentlemen, describing them as the “sole acting trustees and executors of the deceased Alexander Maclean.” As the notice was thus given by two only out of the eight original defenders, the pursuers resolved to take no notice of the application, and gave notice, that they would move to apply the verdict. When the two motions came before the Court, it was contended by the pursuers, that the alleged resignations of the six defenders were irregular and inept, and, that it was incompetent for the two trustees, without the concurrence of the others, to insist in a motion for a new trial. But the Second Division held, that the trust deed gave power to the six to resign by letter, and granted a rule nisi, refusing, at the same time, the motion of the pursuers to apply the verdict. Afterwards the Court made the rule for a new trial absolute; and the Court on motion deleted the names of the six trustees from the issues, and sent the issues thus amended to trial. At the new trial the jury returned a verdict for the two trustees, defenders, who were assoilzied from the conclusions of the action. Thereafter the pursuers again in turn moved for a new trial, which was refused.
The trust deed of the testator contained this power:—“Should any one of my trustees who may accept of my trust afterwards desire to withdraw from the trust, he shall have power to do so at pleasure by intimating by letter to his co-trustees his relinquishment of the office of trustee, and my trustees are empowered thereupon to discharge him of the office accordingly, and my trustees are hereby empowered from time to time to nominate and appoint any person or persons of the name of Maclean or Maclaine to be a trustee or trustees along with them, or in place of any trustee or trustees who shall die, or desire to be discharged, or refuse, decline, or become incapable to act in this trust; and when and so often as any new trustee or trustees shall be so nominated and appointed, all the trust estates and effects, heritable and movable, real and personal, shall forthwith be disponed and assigned in such form as that the same shall be vested in such new trustee or trustees, in case of there being no continuing trustee, and for the purposes of this trust and no otherwise.”
The letters which the trustees wrote were addressed to the agent, Mr. Martin, W.S., simply announcing, that they resigned. The Second Division, consisting of Lord Justice Clerk Inglis, Lords Cowan and Benholme, held, that after the six trustees had resigned, in terms of the powers given to them by the trust deed, the two who remained were as fully entitled to carry on the defence as the whole body of trustees were, and the Court thought the letter sufficiently answered the description of resignations.
The pursuers now appealed against the interlocutors refusing a new trial.
The appellants in their printed case contended, that the interlocutors appealed against should be reversed, for the following reasons:—1. Because the Court of Session ought to have applied the verdict against the eight defenders in the issues, on the motion of the appellants of 29th November 1861, and which verdict was acquiesced in or not objected to by six of their number. 2. Because the proceedings of the two respondents, General Allan Thomas Maclean and Alexander Maclean of Pennycross, in applying for a new trial, were irregular and incompetent, and contrary to the terms of the Statute 55 Geo. III. c. 42, § 17, and the Act of Sederunt, 16th February 1841, §§ 36 and 37. 3. Because the documents produced as “letters of resignation,” being neither holograph nor tested, were improbative and invalid in law, and did not prove their dates or contents. There was, therefore, no evidence before the Court of any resignation of the trust, or desire to withdraw from it by any of the eight defenders as trustees. 4. Because the six trustees, who are alleged to have resigned, did not, in compliance with the provisions of the trust
Page: 1327↓
Rolt Q.C., and Anderson Q.C., for the appellants.—The number of the trustees was indivisible, and when some resigned, the rest could no longer carry on the suit—Ersk. § 2940; Bell's Pr.§ 2226. The Act of Sederunt contemplates, that the same parties who were in the first trial should apply for the second. But there was no proper resignation, for the letters are not probative instruments, and were not intimated to the co-trustees, and followed by a proper discharge. The Court, therefore, could not look at the letters. There is another objection to the proceedings, for the notes of the learned Judge produced to the Court were not those taken at the trial. It appeared, that the defenders' agent had filled up blanks, and otherwise altered the notes of the Judge, so that the Statute 53 Geo. III. c. 42, § 17, was not strictly complied with. The proceedings, therefore, were void.
The Lord Advocate (Moncreiff), Sir H. Cairns Q.C., and Ward, for the respondents, were not called upon.
The nature of the questions raised in the action of reduction of course required, that the issue should be directed to be tried by a jury. And accordingly several issues were directed by the Court and came on for trial in the month of August 1861, when a verdict was found in favour of the appellants against the validity of the will. It appears, that thereupon six of the eight trustees were desirous of retiring from any further defence in the suit, but that the two other trustees, who are represented as having been on intimate terms and personally well acquainted with the deceased testator, determined to continue their defence to the action.
The consequence was, that on the 9th November 1861 the two trustees, who determined to continue the defence, gave a notice of motion, in which, describing themselves as being now the sole acting trustees and executors of the deceased Alexander Maclean, they stated, that they should move the Court for a rule to shew cause, why the verdict, which had been given in the cause, should not be set aside and a new trial granted, and, that in the mean time all further proceedings should be stayed. This motion came on to be heard before the Inner House on the 12th November 1861, when the Lords of the Second Division (the present appellants not thinking it proper to oppose) pronounced an interlocutory order appointing the counsel for the defenders to be heard “on the motion for a rule to shew cause why the verdict in this case should not be set aside and a new trial granted, and appointing the Judge's notes and all necessary documents to be printed: In the mean time sist all further proceedings in this cause.”
It appears, that subsequently to this proceeding on 29th November 1861, the present appellants gave a notice, addressed to the original eight defenders, of a motion, “that the Second Division would be moved to recall the sist contained in the interlocutor of the 12th November, and to discharge the order contained in the interlocutor, and to apply the verdict in this case, and to reduce, decern, and declare, in terms of the conclusions of the summons.”
Page: 1328↓
The second interlocutor appealed from was made on the 4th December 1861, and states, that “the Lords having heard counsel on the motion of the pursuers to apply the verdict, and reduce, decern, and declare in terms of the conclusions of the summons, in respect, that letters of resignation by six of the eight trustees, defenders, in terms of the power to that effect contained in the trust deed, have been produced, and that the remaining two defenders, Major General Allan Maclean and Alexander Maclean, Esq. of Pennycross, now the sole acting trustees and executors, have given notice of a motion for a rule to shew cause why the verdict should not be set aside and a new trial granted.” Upon that the Lords of the Second Division refused the motion of the pursuers to apply the verdict.
The rule to shew cause why a new trial should not be granted came on to be heard and determined in the month of February 1862, when their Lordships were pleased to determine, that the verdict was against the weight of the evidence, and that a new trial ought to be granted.
A new trial was accordingly had, upon which a verdict was returned for the defenders on all the issues. That was followed by a motion for a rule to shew cause why that second verdict should not be set aside, upon which the Court pronounced the following interlocutor: “The Lords apply the verdict: Sustain the defences, and assoilzie the defenders from the conclusions of the conjoined actions of reduction and declarator and reduction, and find the defenders entitled to expenses.”
The present appeal is brought principally on this ground. It is contended by the appellants, that it was not competent to the two defenders, who determined to continue their defence in the suit, to go on with that defence after their six co-trustees, or rather co-defenders, had retired from the suit; and we have been pressed with a great number of ingenious arguments to shew, that it was not competent to the two defenders who determined to continue their defence in the suit, to go on with that defence after their six co-trustees, or rather co-defenders, had retired from the suit, and we have been pressed with a great number of ingenious arguments to shew, that it was not competent to the defenders to give the notice of motion, which was given on the 9th November 1861, or to take the further proceedings which they took in the cause, which I have already stated to your Lordships.
I think your Lordships will agree with me, that it is utterly impossible, that any kind of weight should be attributed to those arguments. It is perfectly clear, that it was competent to the six gentlemen, the co-defenders, who desired to withdraw from further defence in the cause, to do so; but their doing so would not prejudice the right of the other two defenders to persevere in their original defence. And if the contrary conclusion were for a moment entertained, it must of necessity follow, that there would be an absolute denial of justice. For, allowing the case of a suit, in which there are several co-defenders of the same blood, joined together upon one and the same ground, if several of them decline to persevere in the defence, it would obviously be impossible for the remaining defenders to maintain their defence, even though the fact might be, as the fact is here proved to be, that the two defenders took a much more just and correct view of their position and of their rights, and of what justice required, than the six did who retired from the defence.
We have been told, that it was impossible, when six of the defenders withdrew, that the two who were left could be in a position to represent the estate. But I think, that you will agree with me, that that is a consequence that cannot for a moment be maintained; but that the two who remained were clearly entitled to the benefit of the original defence, and although their co-trustees or the gentlemen who were authorized to stand in that capacity declined any longer to continue as defenders, it is impossible, that one defender by his withdrawal can prejudice the right of another defender in a case that has been already brought before the Court. There is no relation between the parties which would disentitle the continuing defender to maintain his defence, by reason of the circumstance of another person who has been associated with them in that defence declining any longer to continue in the office of executor or trustee, and therefore declining any longer to be a party to the proceeding. Upon the six retiring defenders in this cause refusing to take any further steps, the two remaining defenders are permitted to take those steps which the interests of their office and the rights of the parties entitled under the will require. If this were not permitted to be so, the result would be, that the interests of the persons beneficially entitled under the will would be entirely sacrificed by reason of the six trustees withdrawing and the refusal of the Court (as it is contended that the Court was bound to refuse) to permit the two defenders to continue the defence of the action.
Your Lordships' attention has been directed to the Act of Sederunt. But that I think has no bearing on the case, because the language of the Act of Sederunt is expressed merely in general words applying to the persons who were entitled to continue the defence, or to continue the prosecution of a cause.
So far, therefore, upon the merits of the case. With regard to the form, the Court of Session—the Lords of the Second Division —were unanimous in holding, that it was perfectly competent to the two defenders to give the notice of motion. And indeed it would be very much against law and justice, if proceedings were permitted to go on as they have gone on here for a year and
Page: 1329↓
There has been another point argued as a reason for your interference, which is quite of the same character and quality with the other objections which have been presented. It has been argued before you, that the Statute requires, that the Judge's notes of the evidence, taken at the trial, should be laid before the Court of Session precisely and exactly as they were taken down by the Judge. That argument has been carried to such an extent, that it has been in truth contended, that if an accidental error were found in the Judge's notes, that error could not be corrected. That argument is one that scarcely deserves any serious refutation. But, independently of its trivial and unsubstantial nature, your Lordships will observe, that if there were anything of substance in it, it is an objection which might have been brought originally before the Court of Session itself. And it cannot be brought here as a new matter upon which there has been no deliverance in the Court below. When the discovery was made, there was no application to the Court below. If it is said, that it was a matter upon which it was not competent to make an application to the Court below, that of course excludes it from being a subject matter of appeal here. For nothing can be made the subject matter of appeal here, that has not been the subject of a decision in the Court below, and upon which alone the appellate jurisdiction is founded.
I think, that the whole of this proceeding is much to be regretted. It is of a very unsubstantial character, and has been attended with great expense. It would, I think, be a great violation of justice if this appeal were allowed, and I hope, that your Lordships will agree with me in the conclusion, that the interlocutors appealed against ought to be affirmed, and the appeal dismissed with costs.
It has been said, that the Act of Sederunt states, that the application must be made by “the party complaining of the verdict.” Now I certainly read that as meaning a party complaining of the verdict. And although there may be others affected by the verdict who do not complain, surely there can be no rule of law in Scotland so entirely different from the law of this country, as to hold, that if the other appellants or defendants do not choose to complain, you are therefore bound to concur in their acquiescence. I can never believe that to be the law of Scotland. Therefore, even supposing it not to have been made out, that there has been such a strict resignation of the office of trustee as was required, (I do not mean to say, that it is not completely made out,) but assuming that it were so, still I should come to the same conclusion, that there is no foundation for the present appeal.
Page: 1330↓
With regard to the other matter as to the Judge's notes, to suppose, that a mere directory Statute like this, according to which a Judge has to furnish the notes which he has taken of a trial, has not been complied with, because something that was left inaccurate in taking it down, has been corrected before it was handed to the Court, is really to attribute to the Legislature their intention of requiring something which in many cases would be totally impossible. In my opinion there is not the least foundation for that view of the case, and I concur with the Lord Chancellor in thinking, that this appeal ought to be dismissed with costs.
Interlocutors affirmed with costs.
Solicitors: Appellants' Agent, J. H. Ward, Westminster.— Respondents' Agents, John Martin, W.S.; Willoughby, Cox, and Lord, London.