ELIZABETH NISBET v JAMES JOHN FRASER, W S (Court of Session)

Upon the death of the testatrix in 1831, the trustees named in the deed accepted, and Mr Finlayson for some time took the active management. He afterwards, however, (6th Jan. 1831,) left Scotland animo remanendi, without taking any farther steps in the trust, and Mr Maclachlan, another of the trustees, died, so that the respondent, Mr Fraser, was the only trustee alive and resident in this country.

The petitioners therefore craved their Lordships to appoint Mr Murray Pringle judicial factor, with the usual powers, to manage the estate of the testatrix during the absence of the trustee.

At advising, the Court were unanimously of opinion, that under the provisions in the trust-settlement, and in the circumstances which had occurred, it would be proper for their Lordships to appoint a judicial factor.

Lord Balgray observed—That every trustee was bound to follow the directions of the truster; and although the present trust-deed contained a special instruction or recommendation not to allow their number to be reduced below two without supplying the deficiency, the respondent, Mr Fraser, instead of taking means to follow out these directions, had continued for a considerable period to carry on the trust affairs on his sole responsibility, a proceeding which had not been contemplated by the testatrix.

The Court , therefore, ‘in respect of the provisions in the trust-deed, appointed the said Murray Pringle judicial factor in the meantime, with the usual powers.’