Scottish Court of Session Decisions

Mr William Scott, of St Andrews, Hew Brunswick,died there in 1838, leaving a will by which he bequeathed his whole property, under burden of some small legacies, “ to the Provost and Magistrates for the time being, as also the two clergymen of the east and west parishes of his father's native town, Greenock, to be by the said trustees applied to the endowment of a school for the maintenance and education of as many indigent orphan children as the proceeds of said property may be able to support and educate; said children to be instructed in English, reading, and grammar, together with writing, arithmetic, and a few of the plain branches of mathematics; no children to be continued in the said institution over the age of fifteen years, when said trustees shall endeavour to put said children in a way of providing for themselves in this world.” By the will and a codicil, there were also appointed three executors, two of whom resided in New Brunswick, and one in Greenock. Five years were allowed by the will for

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realising the testator's property, and founding the institution.

The pursuers are three orphan children, natives of and resident in Greenock, and the defenders are the testator's trustees. The pursuers allege in the record that by 1843 the testator''s property had been realised to the extent of £2797, 8s. currency; that this was only a portion of the deceased''s property; that, although the testator died in 1838, and allowed only five years for endowing the institution, the trustees had taken no steps for this purpose; that, accordingly, for many years complaints against the trustees on this account had been frequently made in Greenock at meetings of the Parochial Board, at meetings of the Town Council, in the form of letters in the newspapers, and by a Sheriff-court action, which failed on a point of form. The summons concludes, inter alia, for an order upon the defenders, as trustees, to lodge in process the draft of a constitution for the regulation and management of an institution such as the testator provided for.

The defenders pleaded that they had not yet obtained payment of the whole proceeds of the deceased's estate from the executors; that they had instituted an action of count and reckoning against the defenders for the purpose of obtaining payment of the balance in their hands; that they were not bound to institute the charity until they had obtained payment of the balance in the hands of the executors; and that the trustees could not be competently controlled by the pursuers or the Court, in the exercise of the discretion vested in the trustees, both as to the time of instituting the school, and as to the details thereof.

During the dependenee of the present action the action of count and reckoning against the executors was brought to a termination. In that action a remit was made to an accountant, whose report set forth the extent of the trust-estate, and the executors were assoilzied with expenses. Thereafter the defenders, as directed by the Lord Ordinary, lodged in this process a proposed scheme for the deed of endowment, setting forth that the sum in their hands was £3881, 18s. 6d., and containing a scheme for the regulation and management of an institution, and intimated that premises for boarding the children had been purchased, and that other measures were in progress for starting and carrying on the institution. The pursuers having thereupon intimated that their object in bringing the action had been substantially attained by what the defenders had done, moved the Lord Ordinaryto find them entitled to the expenses of the action. The defenders resisted this motion. The Lord Ordinary, after hearing counsel, pronounced an interlocutor finding the pursuers entitled to expenses, under reservation of the question of modification. His Lordship added in a note:— “ The truster, Mr Scott, died very nearly thirty years ago; and while no doubt some delay was unavoidable before his trustees could be in a position to establish and put in operation the school which he contemplated, the Lord Ordinary has found it impossiible to justify the great delay—nearly a generation—which has taken place. It is not surprising, therefore, that such an action as the present was at length brought in June 1864. It is surprising, indeed, that such an action had not been instituted long before. The defenders, Mr Scott''s trustees, say that they had previously raised an action against Mr Scott''s executors, to compel them to account for the trust funds; and that is true, but it appears to the Lord Ordinary, on examining the proceedings in that action, that it was in reality a useless proceeding, as the defenders had, long before it was brought, obtained all the accounting and information that could be procured, or at least had the means of doing so without an action, and that they had also recovered or might have recovered, the trust funds so far as there was any prospect of their ever being recovered. Accordingly, the defenders in the action referred to ultimately obtained absolvitor, with expenses. The dependence of the action cannot therefore, in the Lord Ordinary's apprehension, be held to be a sufficient reason for the defenders' great delay in doing what they recently did, under the pressure of the present action, viz., the establishment of a school such as that contemplated by the truster; and, besides, the Lord Ordinary has all along, while the two actions, the present and the other referred to, were depending before him, felt that the defenders did not proceed with the expedition which he considered was incumbentonthem. For example, the other action, at their own instance, was allowed by them to fall asleep, and remain so for some time, and in the present action, although the state of the funds had been made up and reported on so far back as 6th July 1865 by an accountant to whom a remit had been made in the other action, it was not till the beginning of the present winter session that the defenders made it known inthis process that they had set the school in operation. Having regard to these and to all the circumstancee of the case, the Lord Ordinary thinks that the pursuers had grounds forbringing the action, and are entitled generally to expenses. Whether any, and what, modification ought to be made upon their account, can be best determined when it has been taxed and reported on.”

The defenders reclaimed.

Gifford and Shand for them.