The beneficiaries under a trust-deed raised an action against the trustees to make good loss which it was alleged had been caused by their management of the estate, and averred that when the defenders entered office the estate was sufficient to cover the truster’s liabilities, with a substantial reversion in favour of the pursuers, and that the defenders had exceeded their powers by borrowing upon instead of selling the heritable property. The First Division remitted to an accountant ‘to inquire into the amount of the trust-estate from the date of the truster’s death, the debts due to the truster and paid by the trustees, and the yearly income and expenditure by the trust,’ and disposed of the case upon the basis of the report returned.
On appeal, held that the pursuer was entitled to a proof of his averments respecting the value of the heritable property when the trustees entered office and could have sold it, on the ground that he had never renounced probation, or agreed to accept the report as including the evidence he wished to lead, and that it was still within his right to prove in the ordinary way disputed facts which were not proper matters of accounting, but that the appeal must be affirmed without costs, as the appellant had not previously asked for the restricted proof which was ultimately allowed him.
Opinion (per Lord Watson) that a trustee who has power to sell or borrow is only required to show ordinary prudence in selecting either course, and the question whether or not he acted prudently is one of fact to be solved according to the circumstances of each case.
Judges:
Lords Herschell, Watson, and Fitzgerald
Citations:
[1889] UKHL 794, 6 SLR 794
Links:
Jurisdiction:
England and Wales
Trusts
Updated: 14 June 2022; Ref: scu.635174