Scottish Court of Session Decisions

The late Mrs Black executed a trust-settlement of her whole estate, heritable and moveable, in favour of “James Jackson M'Lauchlan, presently residing in Dublin Street, Edinburgh; James John Fraser, writer to the signet; and Walter Finlayson, writer to the signet, as trustees, for the purposes, and with and under the burdens, provisions, declarations, and reservations herein after expressed, or to such of them as shall accept; and to the survivors and survivor of them, or to such other person or persons as may hereafter be named by myself, or assumed by my said trustees.” The deed contained this clause—“I likewise authorize and empower my trustees before named and referred to, to assume as trustees along with themselves, or in place of any of themselves who may happen to fail, such person or persons as they may think proper, recommending to them never to allow their number to be reduced below two without at least supplying the deficiency, providing always, that when the number of trustees shall amount to or exceed three, a majority of them shall in all cases be a quorum; but that, in the event of their number at any time amounting to two, the concurrence of both shall be requisite, without prejudice, nevertheless, to the actings of a single trustee, in case there shall at any time happen to be no more than one, in the existing nomination.” The fee of the residuary estate came to vest in Miss Elizabeth Nisbet and Miss Margaret Blair, both nieces of the testatrix. The larger portion of the residue (said to be five-eighths thereof) belonged to Miss Nisbet, as to whom it was provided that “the share of the trust-funds and effects which may devolve to the said Miss Elizabeth Nisbet, shall be held by my said trustees for behoof of the said Miss Elizabeth Nisbet, in liferent, during all the days of her life, and for her liferent use and aliment allenarly, without prejudice, nevertheless, to my said trustees occasionally advancing or paying to the said Miss Elizabeth Nisbet such proportion or proportions of the said share or shares of the residue as it may seem expedient for them to advance or pay to her, or for her behoof.”

Mrs Black died in 1831, and the three trustees accepted, Mr Finlayson alone being the acting trustee. M'Lauchlan died, and some time afterwards Finlayson went to Jamaica animo remanendi, without executing any deed, for the purpose of divesting himself of the trust-estate, or assuming any co-trustee to act with Fraser. Fraser then undertook the administration of the trust-affairs, and uplifted above £1000 of the money, and employed it on a new investment.

In 1834, Miss Nisbet and Miss Blair presented a petition, praying the Court “to appoint Mr Murray Pringle, of the Adjutant-general's office, Edinburgh, judicial-factor, with the usual powers to manage the estate of the late Mrs Black during the absence of the trustee, Mr Walter Finlayson, W.S., the said factor, finding caution before extract.” In support of this prayer, they maintained, that so long as Finlayson remained alive, Fraser had no power, under the trust, to act alone, and thus there was no effectual means of administering the trust-estate, because Finlayson, in Jamaica, could not concur in the acts of Fraser in this country. This had been caused by the omission of Finlayson and Fraser to assume a co-trustee after M'Lauchlan's death, or at least upon Finlayson's departure, which they ought to have done, pursuant to the recommendation of the truster, in order to prevent the trustees here from falling below the number of two; and, separately, even if there was any room for contending that the departure of Finlayson was equivalent to his death or resignation, and gave power to Fraser to act alone; yet, as such actings were of very doubtful validity, and would give rise to legal questions, there was high expediency in the appointment of a factor, so as to ensure the valid administration of the trust-estate.

Fraser answered, that he was selected by the truster, under a deed which gave the whole powers of the trust to an acceptor or survivor, though left alone in the administration. Finlayson's departure from the country was such an abandonment of the trust as was equivalent to his death or resignation, and gave full power to the respondent to act alone. There was no injunction, but a mere recommendation, to prevent the number of trustees from falling below two; and as Finlayson had left the country without previous communication with the respondent, the respondent was not in fault for not previously seeing that a third trustee was assumed after M'Lauchlan's death. There was peculiar delicacy, on the part of the Court, in interfering with the administration of the share of the estate appropriated to Miss Nisbet, owing to the high discretionary power vested by the testatrix in the trustee, directing him to hold it for her alimentary use, but with power to make such occasional advances as seemed expedient.