Scottish Court of Session Decisions

Lord President—The jury have given a special verdict. On the first issue they find in general terms for the pursuer; but on the second issue they do not find for the pursuer, but “find that the deceased William Ross was of weak mind, but unanimously exonerate the defenders from all charges contained in the second issue.” It seems to me that we must give at all events equal, if not greater, deference to the special finding upon the question of fact, more especially when the question is one of conduct. Now, on the assumption of the soundness of the jury's verdict, the position is that these gentlemen, the defenders, acted honestly and rightly in relation to this will, and it follow's that they were right in accepting the trusteeship purported to be imposed upon them by the will. The facts are peculiar in this respect, that the charges from which these gentlemen are exonerated are exactly the charges which apply to the inception of the will, and to the accepting of the trusteeship, and we could not hold that the views of the jury were correct, and at the same time that the trustees were blameworthy, and were not entitled to be indemnified out of the estate from the consequences of this action. I must own that I have some difficulty in harmonising, or conjecturing any harmony between, the jury's finding in fact and the implications contained in their findings in favour of the pursuer on the two issues, but I am disposed to think that they may have considered there was some strain of insanity in the testator, which, though occult, none the less disabled him from executing a valid testament. I do not say that is my own view of the facts, but state the theory, because some such theory is necessary as a condition of the argument upon the question of expenses. On the other hand, my own view, as well as that of the jury, is that these gentlemen acted rightly, and accordingly I am of opinion that they are entitled to be indemnified out of the estate.

Lord M'Laren—I am of the same opinion. It seems to me that when the character of trustees is impugned in an action of this nature, if they are honest men they are bound to defend their character. If the verdict is in their favour on the question of fraud and circumvention, I think it would not be equitable under any circumstances that the trustees should be subjected to an award of expenses. As to whether the defenders are also entitled to have their expenses paid out of the trust estate, I should be guided by the impression formed by the presiding judge as to the merits of the action. In the present case I have no hesitation in agreeing with your Lordship in the chair.

Lord Adam and Lord Kinnear concurred.