Scottish Court of Session Decisions

On 29th November 1899 William M'Alley and others presented a petition praying (1) for sequestration of the trust-estate of the deceased Mrs Isabella Balfour or M'Alley, who died in January 1893, (2) for removal if necessary of the two trustees appointed by her, and (3) for the appointment of a judicial factor. The petition was presented to the Inner House, as it contained a prayer for the removal of the trustees.

By her trust-disposition and settlement Mrs M'Alley directed her trustees to realise the trust-estate and divide the residue into five shares. One of such shares was to be paid to each of her four children, William, Margaret, Annie (Mrs Robert Barr), and Catherine (Mrs William Stoddart). The remaining share was to be held by the trustees for behoof of the children of her deceased daughter Helen (Mrs Hardie). The trustees were two in number, Mr Robert Barr, clerk in Grahamston, and Mr William Stoddart, warehouseman in Selkirk, each of whom had married a daughter of the testatrix.

The petition was presented by the son and two daughters of the testatrix, and Mr Robert Barr as one of the trustees. It set forth that, although nearly seven years had elapsed since Mrs M'Alley's death, no steps had been taken for the administration of the trust; that William Stoddart, while claiming to be an acting trustee, had refused to take any part in the administration; and that the trustees, who were nominated executors, had not taken out confirmation to the moveable estate nor completed a title to the heritable estate. It was further averred that Mr and Mrs William Stoddart had retained the household furniture of the deceased and the cash in the house at her death, and a deposit-receipt in her name for £40, and that they had also collected the rents of a heritable property, one-fourth pro indiviso share of which had belonged to the deceased, and retained the titles to that property in their possession. It was also stated that Mrs William Stoddart had intimated a claim against the estate amounting to £290 for board of her deceased mother to the time of her death.

On 14th December 1899 the First Division of the Court, without removing the trustees, sequestrated the trust estate, appointed Mr John Dalziel, C.A., to be judicial factor thereon, and remitted to the Lord Ordinary on the Bills for further procedure.

The judicial factor having found caution and entered on the duties of his office, learned that the deposit-receipt and the title-deeds above mentioned, as well as Mrs M'Alley's trust-disposition and settlement itself, were still in the hands of William Stoddart. No notice being taken of several applications for delivery of them, the factor raised an action against him for delivery, inter alia, of those writs, and for count, reckoning, and payment. In that action no appearance was made for the defender, and decree in absence was obtained against him on 1st March 1900, inter alia, ordaining him to deliver up the said writs to the judicial factor. On this decree William Stoddart was charged on 31st March, but he paid no attention to the charge, notwithstanding repeated applications made to him on the subject.

The judicial factor thereafter presented a note in the factory to the Junior Lord Ordinary (Pearson), in which he stated that Stoddart pretended he had handed all the papers to his wife, but that this was merely a subterfuge to evade implementing the decree of Court.

The prayer of the note was as follows:—“May it therefore please your Lordship to ordain the said William Stoddart and Mrs Catherine M'Alley or Stoddart to appear personally before your Lordship on a date to be fixed by your Lordship, and that within the Parliament House, and to bring with them, exhibit, and produce before your Lordship the writs above mentioned; or otherwise to grant warrant to messengers-at-arms to search for, recover, and take possession of (1) the deposit-receipt, (2) the trust-disposition and settlement, and (3) the title-deeds above mentioned, and, if necessary for that purpose, to open all shut and lockfast places, and to deliver the said writs to the said John Dalziel, judicial factor foresaid, and to decern.”

The Lord Ordinary reported the case to the First Division.

Note.—[ After stating the facts as above set forth]—“The judicial factor could, I suppose, imprison Stoddart on the decree ad factum præstandum. But that would probably lead to delay, and moreover there is no certainty that it would lead to the recovery of the writs, which after all is the urgent matter.

The first alternative of the prayer of the note might possibly have the desired effect, notwithstanding the factor's previous experience in this case. But if Mr and Mrs Stoddart did not compear in obedience to the order, or compearing did not produce the writs, they could but he imprisoned.

The writs being what are wanted, there seems to be direct authority for the alternative prayer in the case of Orr Ewing's Judicial Factor, 1884, 11 R. 682, page 686. In the present case it may be thought that the foundation for a warrant to open lockfast places is fully laid by the ample notice already given to the trustee William Stoddart, by his disregard of the charge on the decree, and by the explanation given by him that he has handed the documents to his wife.

My reason for reporting the case is that the remedies proposed appear to lie within the nobile officium of the Court, and that it being at least arguable that they do so, it is desirable that the validity of the strong measures which appear to be called for should be beyond question.”

Page: 921↓

The judicial factor referred to the case of Orr Ewing's Judicial factor, March 7 and 12, 1884, 11 R. 692, and maintained that the present case was a fortiori of that one.