Scottish Court of Session Decisions

The Trusts (Scotland) Act 1867 (30 and 31 Vict. c. 97), section 12, enacts—“When trustees cannot be assumed under any trust deed … the Court may, on the application of any party having interest in the trust estate, after such intimation and inquiry as may be thought necessary, appoint a trustee or trustees under such trust deed, with all the powers incident to that office.…”

The Judicial Factors (Scotland) Act 1889 (52 and 53 Vict. c. 39), section 18, enacts—“… Where a person deceased has left a settlement appointing trustees or other persons with power to manage his estate, it shall be competent for such trustees or

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other persons to apply to the Court of Session for an order on the Accountant to superintend their administration of the estate, in so far as it relates to the investment of the estate, and the distribution thereof among the creditors of the deceased and the beneficiaries under the settlement; and the Court may grant such order accordingly.…”

Mrs Isabella Bell or Doig, widow of Andrew Doig, farmer, Middle Drums, Brechin, died on 17th October 1908 without issue, leaving a holograph will in the following terms:—“After my own and my husband's death I wish Mamma and Kate my sister to get the interest of my money, at their death the money to be equally divided amongst my nieces and nephews, the share falling to the Pattullo family only to be divided amongst them at their mother's death, she to get the interest of it all her life, the same with the share falling to the Wrights, their mother to get the interest of it all her life, Ella and Jessie Bell to get their shares at my sister Kate's or Mamma's death, that is, at the death of the last survivor of the two.

“At the present time I have £800 invested on Balnamoon, £500 on property in Brechin, John Pattullo has £500 on loan, £20 on the Glenesk Hotel, and £30 in Clydesdale Bank. Isabella Doig.

Middle Drums,

21st February 1898.

If Kate should be married after Mamma's death, I wish the money to be divided at her marriage, she getting a fourth of the whole, the remainder being divided amongst my nieces and nephews.

I.D.”

The deceased left no heritable property, but her moveable estate amounted to about £3330.

Mrs Annie Bell or Pattullo and others, some of the next-of-kin of the deceased, presented a petition under the Trusts (Scotland) Act 1867, sections 12 and 13.

The petitioners, inter alia, stated—“That the testatrix made no appointment of trustees or executors. The petitioners are advised that it is desirable, looking to the facts that the number of beneficiaries is large, that some of them are resident abroad, and some are in minority, and that the provisions of the will will involve the continued administration of the estate for a number of years, that the administration of the estate and the purposes of the will should be carried out by trustees to be appointed by the Court, with power to assume new trustees.”

The petitioners craved the Court to appoint trustees under Mrs Doig's will with power to assume new trustees.

The following authorities were referred to:— Fiddes, February 9, 1874 (Lord Gifford); and Lee, December 7 1889 (Lord Kyllachy); Currie on Confirmation (3rd ed.), p. 58; Milroy v. Tawse, February 23, 1905, 12 S.L.T. 777.