Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION-TUTOR.
Subject_3 The original trustees named in a settlement had been removed by the act of the Court. Found that the Court could not name new trustees; but they appointed a factor with the ordinary powers, and also with power to bring an action for compelling the trustees to denude.

Mary Witherspoon
v.
Others, Petitioners

Date: 15 December 1775

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[Folio Dict. VII. 153; Dict. 16,372.]

Coalston. I doubt how far a factor, with the ordinary powers, can discharge the trust. The trustees, in so far as they were tutors and curators, have been removed as suspect; but they are still vested in the right to the subject. They must be denuded of the right in them, and that can only be done by an action against the trustees for denuding in favour of the constituents, or of trustees to be named by them. This is a case which may happen every day, as in the case of trustees for a debtor, when they act improperly.

Kaimes. On the supposition that there was a conveyance to the trustees, investing them in all the effects of the disponer, I admit the consequence, for he who is invested must be divested; but I think that there is no vesting here, and that no more is meant than to convey an office. It is a deed wrote by an ignorant person who knew not the force of the words which he used. I would explain it in the manner which seems most rational. I doubt whether we can name either trustees or factor: we never interpose unless where there is a necessity; but here there is no necessity, for the right will fall to the executors ab intestato; but if the trustees are invested, they must be divested at the instance of the persons honoured by the deed.

Alemore. Trust-rights are new in this Court, and they are still in a very crude state. The truster here names his friends fiduciaries and assignees, and the like: this means no more than an extending of the word dispone. As all these things are in consequence of the main trust, if that cannot subsist, the Court will take into their own hands, for the best of all reasons, from necessity.

Covington. Supposing the property to be established in the person of the trustees, there would be a necessity of denuding them; but their right is no more than a title authorising confirmation; and it is admitted that no title by confirmation has been made up. There is no vesting here: even if the trust had been to the nearest of kin, it would not have vested, as things stand at present.

Coalston. We are bringing this cause into difficulties which do not occur in it. This Court will give assistance to carry the just will of the deed into execution, as in the case where trustees will not accept. I suppose the fee to be vested in the trustees, and they must be denuded of it. Should we appoint a factor, what will be the consequence?—The right will still remain in the trustees. We have not declared the trust at an end, although we have divested the trustees of the offices of tutors and curators.

Auchinleck. There is a total stop at present: if we name a factor loco tuloris, he will bring a process for denuding the trustees.

Hailes. I am for appointing a factor from the necessity of the thing, and the hazard of delay; for the trustees are broken men, and have found no caution.

On the 15th December 1775, “The Lords appointed a factor loco tutoris, with power to him to bring a process against the trustees for denuding them of the subjects.”

For the petitioner, G. Ferguson.

Diss. Coalston.