Scottish Court of Session Decisions

The petitioner in this case was one of the executors of the late Hugh Loag, draper, Wick, who died in April 1875. The other accepting executors were Dr Bernard, then Roman Catholic clergyman in Wick, and afterwards residing in Copenhagen, and William Miller, writer, Wick.

Mr Loag was survived by a widow and three children—one son and two daughters. By the provisions of his testament his executors were, after providing an annuity of £40 to his widow, and fulfilling certain other purposes, to hold his estate for behoof of his three children, and divide it equally among them, payment to be made to his son upon attaining the age of twenty-one, and to his daughters upon their marriage. A

Page: 416↓

small legacy was also left to each of the executors, but this was, it was averred, never taken by the petitioner.

The estate consisted of, inter alia, stock of the City of Glasgow Bank to the amount of £1350. Dr B. Bernard, the petitioner, and William Miller were confirmed as executors, and their names entered with their authority on the register of the bank.

By minute of resignation, dated 20th December, and recorded 27th December 1870, the petitioner formally resigned the office of executor, and on 29th December his agent intimated the resignation by formal letters, accompanied by copies of the minute duly sent to each of his co-executors. After the resignation the petitioner in no way intromitted with the executry estate. But it was admitted “that no transfer by the petitioner to the remaining trustee or trustees was executed at or after the date of his resignation of the trustee ship, nor was formal intimation of the petitioner's resignation of the trusteeship ever made to the City of Glasgow Bank, and the bank officials were never asked to make any change in the entry of the names of the trustees of the late Hugh Loag in the stock ledger or other books of the bank.”

It was, however, admitted that “the warrants for payment of dividend were signed by the petitioner and William Miller, another trustee, down to the year 1870. The dividends have since been paid on the signature of William Miller alone, who held a responsible position in Wick, being town-clerk thereof. On the first occasion of the dividend warrant being signed by the said William Miller alone, viz., in February 1871, the following note was made in the dividend register of the bank in the column for ‘Remarks,’ opposite the entry of the dividends due on the stock held by Hugh Loag's executors, ‘p. Will. Miller, Exr.’ The previous entries in that column were ‘p. Chas. Tochetti and Will. Miller.’” Dr Bernard, it appeared, never signed any warrants.

Argued for the petitioner—(1) The petitioner was a trustee entitled to resign. He was called an executor indeed, but the duties were those of trustees. He was entitled to get £20, but he never accepted that legacy, which was given on condition of undertaking office. He had therefore effectually resigned, and (2) was consequently within the case of Oswald, supra, p. 221. For the principle of that case was, that the title to a trust estate was inseparable from the office, and the moment the character of trustee was gone the title went likewise. There was no need for a formal divestiture. In practice, neither the whole body of trustees, nor the resigning trustee, granted any deed of such a nature. (3) In Sinclair's case ( ante, p. 235) it was held that intimation was necessary. But what that case required was intimation as a matter of fact—no particular solemnity was enjoined. Now here the new form of entry in the dividend register coincided in point of time with the petitioner's resignation. That evidence might not be conclusive at first, but it grew in strength with lapse of years. It would not have done to pay to Miller only if Tochetti was necessary also; hence it was to be assumed that the bank knew of his resignation. As to Dr Bernard's not signing the warrants, the bank had probably assumed the law to be that a majority of the accepting executors was enough.

Argued for the respondents—(1) There was no effectual resignation. The petitioner was not a trustee but an executor. No doubt there were trust duties, but the appointment was one of executors. No power of resignation was conferred by the trust-deed. The power, therefore, if it existed, was purely statutory. Now, under section 18 of the Trusts (Scotland) Act 1867–31 and 32 Vict. c. 97—power was given to executors to resign where they were also trustees, but there was nowhere any power to resign conferred on those who were executors only. Then, again, the Act conferred power of resignation upon gratuitous trustees only. But here the petitioner did not hold office gratuitously. He was entitled to £20 under the deed. He was therefore not within the Act, and could not resign. But (2) assuming that he was entitled to resign, and that he had resigned, that was not enough. There must be a formal transference by him, or by the whole trustees including him, to the remaining trustees; and that transference must be formally intimated to the bank. But here there was no transference and no intimation. There was at least no evidence of either. It was said that knowledge on the part of the bank must be inferred from the change in the mode of entry in the dividend register, coinciding as it did in time with the intimation of the resignation to the other executors. That was evidence, and might create a presumption in favour of knowledge, but it did nothing more; for it might be explained in other ways. The bank might have been lax in paying to Miller alone, a man residing in the place and well-known, whereas Tochetti had left and could not be conveniently got to sign. Then it was to be remembered that there was another executor who for years had never signed because he was abroad. At best, however, it only proved knowledge, not a formal intimation. But the bank had no authority within their private knowledge to remove a man's name from the register, and it was admitted that there never had been formal intimation. If the petitioner himself had made the intimation, the same formality might not be requisite; but he made no such allegation. And it certainly must be very distinctly proved that Miller had authority to make the intimation for the petitioner before the bank were entitled to remove his name from the register.

Authorities—Stair, ii. 12,3, and iii. 1, 2; Martin v. Wight, Feb. 3, 1841, 3 D. 485; Gordon v. Eglinton, July 17, 1851, 13 D. 1381; Findlay, June 30, 1855, 17 D. 1014; Jameson v. Clark, Jan. 24, 1872, 10 M. 399; Barfoot v. Goodall, 3 Camp. 146.

At advising—