Mackenzie's Executor v Thomson's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 09 June 1965 |
| Docket Number | No. 19. |
| Date | 09 June 1965 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Cameron.
Trust—Termination—Exoneration of trustees—Discharge—Whether trustees entitled to discharge in respect of predecessors' intromissions—Trusts (Scotland) Act, 1921 (11 and 12 Geo. V, cap. 58), sec. 3 (d).
The Trusts (Scotland) Act, 1921, enacts by sec. 3, inter alia:—"All trusts shall be held to include the following … provisions unless the contrary be expressed … (d) A provision that each trustee shall be liable only for his own acts and intromissions and shall not be liable for the acts and intromissions of co-trustees and shall not be liable for omissions …"
In an action for payment of a beneficiary's share in a trust estate the trustees admitted that payment was due, but contended that on payment they were entitled to a "full and final" discharge covering not only their own intromissions with the trust estate, but also the intromissions of their predecessors. The pursuer offered on record to discharge the defenders, but he averred that no trust accounts had been exhibited for the years 1922 to 1944, and that he wished to reserve any rights he might have against any former trustees and their representatives. The defenders refused to accept a discharge containing such a reservation.
Held by the Lord Ordinary (Cameron) that, as it was to be inferred from sec. 3 (d) of the 1921 Act that trustees in office are, prima facie at least, liable only for their own intromissions, and as it was not suggested that there were in the present case any exceptional circumstances which would infer liability for the intromissions of former trustees, the defenders were bound to denude in the pursuer's favour on receiving a discharge in respect of their own acts and intromissions with the trust estate.
Kenneth Thomas Mackenzie, executor-nominate of Mrs. Mary Jane Thomson or Mackenzie, brought an action against George Cecil Loudon Willock and William John Trotter, C.A., the surviving and assumed trustees acting under the trust disposition and settlement of John Thomson, who died on 30th April 1909. The action was for payment and delivery of Mrs. Mackenzie's share in the trust estate.
The following narrative of the facts is taken from the opinion of the Lord Ordinary (Cameron):—"This is an action for payment and delivery at the instance of the executor of one of the residuary beneficiaries of the estate of one John Thomson, who died on 30th April 1909, leaving a trust disposition and...
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Ps Independent Trustees Ltd V. David Kershaw &c
...of co-trustees; nor is he liable for omissions: see Mackenzie Stuart, The Law of Trusts and Mackenzie's Executor v Thomson's Trustees 1965 SC 154. He submitted that the pursuers had failed to aver any basis upon which the fifth defender could be held liable for losses arising from acts or o......
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Club Los Claveles v First National Trustee Company Ltd
...First Division Lord Armstrong No 31 Club Los Claveles and First National Trustee Co Ltd Cases referred to: Mackenzie's Exr v Thomson's Trs 1965 SC 154; 1965 SLT 410 Moness Country Club v First National Trustee Co Ltd [2013] CSOH 188; 2014 GWD 15283 Sharp v Thomson 1997 SC (HL) 66; 1997 SLT ......
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...the obligation to account attaches, in a question with beneficiaries, to the existing trustee (Mackenzie’s Executor v Thomson’s Trustees 1965 SC 154, at 156), and, secondly, trustees are bound to account for the trust estate and their intromissions with it in order that the beneficiaries ma......