Gibson v Caddall's Trustees

JurisdictionScotland
CourtCourt of Session
Judgment Date11 Jul 1895
Docket NumberNo. 168.
Court of Session
1st Division

Ld. Wellwood, Lord President, Lord M'Laren, Lord Kinnear.

No. 168.
Gibson
and
Caddall's Trustees.

TrustExpenses of litigation by trusteesPersonal liability.

ContractAnnual IncomeCasualty.

Trustees holding lands and funds under a deed of mortification for the erection and maintenance of a church disponed the lands to the minister during his incumbency. The minister having allowed certain hedges which fenced the lands to get into bad condition, the trustees, against the wishes of the minister, got them properly pruned. In an action brought by the minister against the trustees for interdict and for 100 damages, the Sheriff, although of opinion that the trustees had acted throughout in perfect good faith, and for the benefit of the property, the fee of which they held in trust, found that the trustees had acted illegally, and gave decree for 5 of damages. He also found the defenders jointly and severally liable in expenses, which he modified to one-half.

Held that the trustees were entitled to charge the expenses incurred in defending the action against the trust funds.

Trustees bound themselves by agreement with a beneficiary to pay him the whole free annual income of the trust-estate.

Held (rev. judgment of Lord Wellwood) that this did not include a duplicand of feu-duty which was payable to the trustees only once in nineteen years.

Lamont-Campbell v. Carter-Campbell, Jan. 19, 1895, supra, p. 260, distinguished.

By deed of mortification dated 14th August 1819, Mrs Isabella Butter or Caddall disponed to trustees a part of her estate not exceeding fifteen acres, and further disponed to them certain lands in security of a sum of 4500 to be paid to them at her death. The trustees were directed, inter alia, to erect on the fifteen acre lands a house to be called in all time coming Butter's Chapel, and a manse, and to invest the balance of the sum of 4500, after satisfying the other purposes of the trust, and to apply the interest therefrom to the minister as stipend.

On Mrs Caddall's death the trustees were duly vested in the ground disponed to them, and received payment of the 4500.

In 1850 the church was erected, and in 1857 the Rev. Henry Gibson was appointed to the charge. In 1858 the trustees conveyed to him during his incumbency the manse and offices, and the lands belonging to them, reserving the growing wood and plantations on the lands, and they bound themselves and their successors in office to pay him a stipend equivalent to the interest of 2700 yearly. In 1869 a sinking fund which had been instituted in 1850 for the purpose of paying repairs which might from time to time be required on the property, amounted to 500, and the trustees thinking that sum sufficient for the purposes of the fund, entered into an agreement with Mr Gibson to give him, in addition to the income from the 2700, the balance of the free income of the estate, he agreeing to keep up the manse and fences.

In 1877 the trustees complained to Mr Gibson that the hedges which fenced the lands from the public road had become overgrown, and were being destroyed for want of cutting. They afterwards got them examined in Mr Gibson's presence by skilled persons, who recommended them to be cut down to the height of 31/2 feet. The trustees subsequently, without Mr Gibson's consent, sent a hedger on to the lands, who cut down the hedges to the said height. Mr Gibson thereupon raised an action in the Sheriff Court at Ayr against the trustees to have them interdicted from cutting the hedges, and ordained to pay him 100 in name of damages, and on 18th December 1877 the Sheriff-substitute (Paterson), after a proof, granted the interdict craved, gave decree for 5 as damages, and found the trustees jointly and severally liable for that sum and for expenses, subject to modification.*

On appeal this interlocutor was adhered to by the Sheriff (Campbell), who modified the expenses to one-half. In August 1880 the trustees paid the damages and expenses, which together amounted to 109, 9s., out of the sinking fund.

In 1885 the trustees entered into a new arrangement with Mr Gibson, by which it was agreed (1) that the arrangement of 1869 should be departed from; (2) that certain sums should be expended upon the church, manse, fences, &c., out of the sinking fund; (3) that in future the upkeep of these should be under the exclusive control and management

of the trustees; (4) that the sinking fund should be gradually brought up again to the sum at which it then stood; and (5) that so...

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