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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crichton and Another v. Ferguson and Others (Henderson's Trustees) [1898] ScotLR 36_22 (26 October 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/36SLR0022.html Cite as: [1898] SLR 36_22, [1898] ScotLR 36_22 |
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Page: 22↓
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Circumstances in which testamentary trustees who in an action of reduction had unsuccessfully defended the trust-disposition and settlement by which they were appointed, held entitled to their expenses out of the trust-estate.
Form of issue in an action of reduction of a trust-disposition on tile ground of fraud and circumvention commented on per Lord President Robertson.
Mrs Crichton and another raised an action to reduce the trust-disposition and settlement with relative codicils of the late Anne Henderson, Linlithgow, whose next-of-kin the pursuers were.
The pursuers called the Rev. John Ferguson, minister of Linlithgow, James Nimmo Cuddie, John George Barron Henderson, and Michael William Henderson, Miss Henderson's trustees and executors, as defenders. They also called the beneficiaries under Miss Henderson's trust-disposition “for their right and interest in the premises.” None of the beneficiaries, however, compeared.
The conclusion of the summons for expenses craved that the Rev. John Ferguson and the other trustees “as trustees foresaid” should be decerned and ordained to make payment to the pursuers of the sum of £100 sterling or such other sum, &c.
The pursuers averred that the testatrix “was very facile and easily influenced. She was absolutely under the influence of William Horn Henderson, of the firm of Glen & Henderson, writers, Linlithgow, and the members of his family. Mr Henderson was not a blood relation, but he managed her affairs and directed her with reference to the disposal of her means and estate after her death.” They further averred that the testatrix “was weak and facile in mind and easily imposed upon, and the said William Horn Henderson and members of his family, taking advantage of the said weakness and facility, did, by fraud and circumvention, obtain the said deed and codicils to the lesion of the said Anne Henderson and of the pursuers.” There was no averment on record of fraud against the trustees.
The pursuer pleaded—“(2) The said Anne Henderson, when she executed the said pretended trust-disposition and settlement and codicils, having been weak and facile in mind, and easily imposed upon, and the said William Horn Henderson having taken advantage thereof to procure the same to the lesion of the granter, the same ought to he reduced. (3) The said settlement and codicils having been impetrated from the said Anne Henderson by undue influence on the part of the said William Horn Henderson, the same ought to be set aside.”
The following issue was allowed by the Lord Ordinary (Kyllachy):—“Whether on or about the foresaid date [viz., the date of the trust-disposition] the said Anne Henderson was weak and facile in mind and easily imposed upon; and whether William Horn Henderson or any of the defenders, taking advantage of her said weakness and facility, did, by fraud or circumvention, obtain the said deed to the lesion of the said Anne Henderson?” Issues in identical terms were allowed with regard to the codicils.
The jury having at the trial (at which the Lord President presided) returned a verdict for the pursuers on all the issues, the pursuers moved to apply the verdict, and intimated that they desired the defenders to be found liable in expenses only qua trustees and not personally.
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The defenders moved that they should be found entitled to their expenses out of the trust-estate. They argued—The present case fell within the principle of Ross v. Macpherson May 25, 1898, 35 S.L.R. 699, 25 R, 897. The general rule was that trustees were entitled to defend a will if they had a reasonable case. [ Lord M'Laren expressed dissent from this proposition and asked—Are trustees entitled to any indulgence different from that given to private individuals?] Here, though nothing was alleged against the defenders on record, the issue was a direct attack upon their character, and they were entitled to defend the action— Munro v. Strain, June 18, 1874, 1 R. 1039. The case was distinguishable on that ground from Graham v. Marshall, November 22, 1860, 23 D. 41.
The pursuers argued that the defenders were not entitled to be indemnified out of the trust-estate, and referred to Graham, ut sup. There was no general rule by which trustees who unsuccessfully defended a deed were entitled to expenses out of the trust-estate. It was a question of circumstances— Watson v. Watson's Trustees, January 20, 1875, 2 R. 344. There were here no allegations of fraud on the part of the trustees on record, which distinguished the present case from the very special one of Ross, ut sup.
The issue of facility and circumvention which, owing to there being so many deeds, is repeated five times, puts the question whether this alleged testatrix was weak and facile in mind, and whether Mr William Horn Henderson, writer, Linlithgow, or any of the defenders, did by fraud and circumvention obtain the will. I must confess I think that form of issue, even apart from the record, is open to the grave objection that a charge of fraud and circumvention ought specifically to apply to individuals, and it appears to me most objectionable that without even asking the jury to single out any particular individual, they should be entitled to launch a verdict, as they have done here, against a set of people without saying which of them the verdict is aimed at.
But that peculiarity of the case derives special importance from a comparison of the issue with the record. The word defenders is so applied by the summons solely to the trustees. If we turn to the record we find that there is no charge of fraud against the trustees .at all, the charge of fraud is against Mr William Horn Henderson and members of his family, some of the family being “defenders” and some not.
After the adjustment of the issue this singular result follows, that the trustees who are not charged with fraud at all in the record are put into the issue along with Mr William Horn Henderson without any attempt to distinguish which of them had to do with the matter. I mention this because I think that such issues as these should not be used. But then this bears very directly on the question of expenses. The real truth is that the issue should not have been allowed at all, because there is no record to support it, but from the moment it was allowed the trustees were bound, being persons with characters to lose—(one of them the minister of the parish)—to go on and defend themselves, and we cannot say whether they have done so successfully or not. But in the present question they are quite entitled to say that they have, and Mr Watt and his clients, owing to their own fault, have not the means of gainsaying this contention of innocence. The logical result is that from the lodging of the issues the trustees are entitled to their expenses, but I am inclined to think that we must assume that the record justified the issues, and that the trustees were entitled to come forward from the first and defend themselves. Then again, Mr Watt makes no motion for expenses against the trustees. The reason of this, it is said, is that there is no conclusion for expenses against the trustees in the summons. I say that that proves conclusively that he had knowledge of their innocence from the first.
On these grounds I am for allowing the trustees their expenses, but I think it right to say that this case does not involve any finding generally to the effect that trustees who are not charged with fraud are entitled to try the case at the expense of the trust-estate, and should not rather go to the beneficiaries and say that they could not defend unless they were kept clear of expenses. I do not wish to say anything against that principle, which seems to apply to many cases, but I am decidedly of opinion that it does not apply to this.
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The Court found the pursuers entitled to their expenses out of the trust-estate, and also found the defenders entitled to their expenses out of the trust-estate.
Counsel for the Pursuers— Watt—A. S. D. Thomson. Agent— John Veitch, Solicitor.
Counsel for the Defenders— W. Campbell, Q. C,— Constable. Agent— Thomas Liddle, S.S.C.
