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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Walker and Others (Giles' Trustees) [1874] ScotLR 12_100 (23 November 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/12SLR0100.html Cite as: [1874] SLR 12_100, [1874] ScotLR 12_100 |
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Page: 100↓
A father appointed certain trustees by name, and the settlement contained a clause as follows:—“I hereby nominate and appoint my said trustees, named, or to be named or assumed, tutors and curators of such children as may be alive at my death.” The trustees accepted office, and on the death of one of their number assumed two new trustees. Held that the original trustees alone were entitled to act as tutors and curators.
Mr James Giles, R.S.A., residing in Aberdeen, died on 6th October 1870, survived by his second wife, by one child of his first marriage, who attained majority, and by two children of his second marriage, both in pupilarity. Mr Giles left a trust-disposition and settlement, by which he conveyed his whole estates, heritable and moveable, to the trustees therein named. The settlements contained the following clause:—“I hereby nominate and appoint my said trustees, named or to be named, or assumed, and the survivors and survivor of them, tutors and curators, or tutor and curator, of such children of my present marriage as may be alive at the time of my death.” The trust-estate is of the value of between £11,000 and £12,000. The trustees accepted office, and on the death of one of their number the survivors assumed two new trustees. A question arose as to whether the assumed trustees were, as such, tutors
Page: 101↓
to the pupil children of the truster along with the original trustees. The assumed trustees claimed to act as such tutors, but the original trustees denied their right to do so. The questions submitted to the Court were:—“(1) Are the said George Walker, James Bruce and Alexander Ellis, as surviving trustees nominated by the said James Giles, sole tutors of Alexander Bruce Giles and Mary Giles, the pupil children of the said James Giles? or, (2) Are the said Alexander Stronach junior, and Henry John Gibson, assumed trustees of the said James Giles, tutors to the said children along with the said George Walker, James Bruce, and Alexander Ellis?”
At advising—
The
The Court pronounced the following interlocutor:—
“Find that George Walker, James Bruce, and Alexander Ellis, as surviving trustees nominated by James Giles, are sole tutors of Alexander Bruce Giles and Mary Giles, the pupil children of the said James Giles, and find both parties to the Special Case entitled to payment of their expenses out of the estate, and decern.”
Counsel for the Original Trustees— J. D. Dickson. Agents— Bruce & Kerr, W.S.
Counsel for the Assumed Trustees— Lee. Agents— Tods, Murray, & Jamieson, W.S.
