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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mary Wotherspoon and Others, Petitioners. [1775] Mor 7450 (15 December 1775)
URL: http://www.bailii.org/scot/cases/ScotCS/1775/Mor1807450-172.html
Cite as: [1775] Mor 7450

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[1775] Mor 7450      

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. VII.

Nobile officium.

Mary Wotherspoon and Others, Petitioners

Date: 15 December 1775
Case No. No 172.

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.


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In June 1769 the deceased James Wotherspoon executed a trust-disposition and settlement of his moveable estate, which was considerable, in favour of three persons unnecessary to be named. The disposition was granted for behoof of Janet and Mary Wotherspoons, the sisters of the defunct, and their children; and the trustees are also nominated tutors and curators to the children; and there is a clause declaring, that they shall not be liable for omissions, nor yet in solidum. As the three trustees were in embarrassed circumstances, to say no more, a petition and complaint, upon the statute 1696, cap. 8. was presented in December 1774, and, in consequence thereof, the Court removed the said tutors and curators as suspect, and discharged them from farther administration of the pupil's affairs.

These facts were stated in a petition now given in, in name of Mary Wotherspoon and others; and farther, that, after obtaining this interlocutor, the petitioners applied to the trustees to account for their intromissions with the effects, requiring them to convey the bonds and other securities in their favour, or to make payment of the sums therein contained. But this the trustees have refused to do, upon pretence that, as the bequest in the will depends on a variety of contingencies, they are not in safety to make payment. Wherefore the present application was made, hoping that, in the special circumstances of this case, and when the trustees named by James Wotherspoon stand removed by the interlocutor upon the petition and complaint, the Court will not suffer the settlement to be evacuated through the fault of the trustees, but will interpose ex nobili officio, and name a new trustee or trustees upon the joint suggestion of all persons having interest. And they cited the case of Lord Monzie and others, No 163. p. 7440. as analogous to the present. At the same time, in case there should be any difficulty upon this head, an alternative prayer was thrown in, to appoint a factor upon the subjects.

The petitioners were ordered to print the trust-right for the consideration of the Court, and to subjoin their reasons for having a trustee rather than a factor. And, as it appeared from the deed itself, that the trustees were thereby appointed executors, and vested with discretionary powers, the doubt as to this Court having a power to name trustees with similar powers, became the greater, though there appeared no objection to their taking this estate under their care, and appointing a factor to manage it. Accordingly,

'The Court appointed a factor, with the usual powers; and also, with power to bring an action for denuding the trustees, in case that should be thought advisable.'

For Petitioners, Geo. Fergusson. Fol. Dic. v. 3. p. 349. Fac. Col. No 207. p. 153.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1775/Mor1807450-172.html