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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paul and Another (Barnet's Trustees) v. Barnet and Others [1872] ScotLR 9_462 (22 May 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0462.html
Cite as: [1872] ScotLR 9_462, [1872] SLR 9_462

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SCOTTISH_SLR_Court_of_Session

Page: 462↓

Court of Session Inner House Second Division.

Wednesday, May 22. 1872.

9 SLR 462

Paul and Another (Barnet's Trustees)

v.

Barnet and Others.

Subject_1Trust
Subject_2Exoneration.

Facts:

Trustees under a trust-disposition having raised an action of M.P., the Court found one of the claimants entitled to the heritage. After this decree the trustees granted a lease of part of the heritage, and refused to convey the estate to the heir until they received exoneration. Held that the trustees were entitled to exoneration up to the date of the raising of the action, but that they were bound to denude in favour of the heir without receiving exoneration for subsequent actings.

Headnote:

This was an action of multiplepoinding and exoneration by the trustees of the deceased Mr Barnet of Hillhead in Aberdeenshire. The truster left considerable property, heritable and moveable, and after a proof, Alexander Barnet, residing at Backward of Kemnay, Aberdeenshire, was preferred to the heritage, and certain other claimants to the moveables. Against that preference the unsuccessful claimants of the moveables appealed to the House of Lords, but the unsuccessful claimant of the heritage did not appeal. Alexander Barnet having called on the trustees to denude, they offered to comply on receiving exoneration; this, however, he refused to grant, on the ground that they had acted ultra vires in granting a lease of the heritage after the date of the multiplepoinding, and that this lease was to be reduced. The Lord Ordinary ordained the trustees to execute and lodge in process a disposition of the heritage, and thereafter found Alexander Barnet entitled to borrow it from process and retain it as his own deed. Against that interlocutor the trustees reclaimed.

Page: 463↓

Solicitor-General and Birnie, for the reclaimers, argued that trustees were not bound to denude till offered exoneration for their whole actings with reference to the trust-estate; that the trustees here had not sufficient funds in their hands or deposited in Court to secure them against the result of the threatened reduction; and that they were not safe to denude in favour of the heir in heritage until the issue of the appeal as to the moveables should be ascertained. Farther, that if the heirs in moveables were held not to have been the nearest relations of the deceased, and therefore to have been wrongously preferred to the moveables, their brother, the heir in heritage, must have been wrongously preferred to the heritage. ( Elliot's Trustees v. Elliot, 1828, 6 S. 1058; Edmond v. Blaikie and Anderson, 1860, 23 D. 21.)

Watson and Johnstone, for the respondents, replied that after the heir had obtained decree in his favour, the trustees could no longer lawfully withhold from him the disposition to the heritage; that they had acted ultra vires in granting a lease of the heritage after the case was in the hands of the Court, and that, therefore, they could not claim exoneration for actings subsequent to the date when the action was brought into Court.

At advising—

 Judgment:

Lord Justice-Clerk—Had the trustees raised a question of this nature before the date of the multiplepoinding, the case would have been different. But by that action the entire property in dispute was lodged in the hands of the Court, after which the trustees ceased to be proprietors in the ordinary sense, and they have, therefore, no right to withhold the heritable property from the heir, who has obtained a decree in his favour. With regard to the lease granted by the trustees, it may turn out advantageous to the heir, or it may turn out to have been granted by them ultra vires. In any event, the heir is entitled to get possession of the estate; and the question whether the administration of the trustees subsequent to the raising of the action of multiplepoinding has been beneficial is a mere question of accounting, and must be settled afterwards. With regard to expenses, in a matter in which the trustees have been litigating for their own interest, and have been unsuccessful, I see no reason why they should not be held personally liable.

Lord Cowan—I think it was a somewhat extraordinary act on the part of the trustees to grant the lease in question without the authority of the Court, in whose hands the whole estate was placed, but I cannot at present say whether that act was ultra vires or not. I am clearly of opinion that the disposition must be given up by the trustees, but that they are entitled to exoneration for their administration of the trust-estate previous to the raising of the action.

Lord Benholme—I am of opinion that the trustees must give up the disposition to the heir de piano.

Lord Neaves concurred.

The Court pronounced the following interlocutor:—“Find that the reclaimers are entitled to be exonered and discharged of their whole actings and intromissions up to the date of bringing the action into Court, and exoner and discharge them accordingly, and decern. Quoad ultra, adhere to the Lord Ordinary's interlocutor: Find the reclaimers liable in expenses since the date of that interlocutor, and remit,” &c.

Solicitors: Agents for Reclaimer— Tods, Murray, & Jamieson, W.S.

Agent for Respondents— T. J. Gordon, W.S.

 1872

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URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0462.html