Scottish Court of Session Decisions

Thomas Melville Russell, who died on 3rd February 1891, by trust-disposition and settlement dated 24th October 1890 conveyed his whole estate, heritable and moveable, to the trustees therein named, and directed them, inter alia, to realise and pay over the whole residue to the Mildmay Mission to the Jews in London. He further gave his trustees the right “to take over themselves, or make over to their friends, such parts, of my stock, funds, or securities as my trustees may feel disposed or in their own absolute discretion think to be right and proper, and at such prices as they alone may regard as the fair market value of the day of such stocks, funds, or securities as may be taken over or made over as aforesaid.”

Of the trustees named, Duncan Mackinnon, an East India merchant resident in London, alone accepted office, and assumed Neil Macmichael, an East India merchant in Glasgow, as his co-trustee.

The value of Thomas Melville Russell's estate was over £90,000, the greater part of which was invested in East Indian and American companies, and elsewhere furth of Scotland. There was not within Scotland any heritable estate belonging to the deceased.

Mrs Helen Taylor Russell or Bowman, a niece of the testator, and one of his two next-of-kin, on 2nd November 1891 presented a petition to the First Division of the Court of Session praying for sequestration of the trust-estate, removal of the two trustees from office, and the appointment of a judicial factor, and until any answers could be considered she prayed the Court to sequestrate, remove, and appoint, all ad interim. The reason alleged by the petitioner was that she was about to bring an action of reduction of the trust-disposition and settlement of 24th October 1890, on the ground that the testator was not of sound mind, and that the officials of the Mildmay Mission to the Jews had acquired undue influence over him.

She averred—“The said Duncan Mackinnon is resident in London, and is not subject to the ordinary jurisdiction of the Scottish Courts, and it is believed and averred that he and Neil Macmichael contemplate immediately removing the trust-estate entirely out of Scotland, and winding it up in England, with the view of trying to defeat any results favourable to the petitioners which may be obtained in the said action of reduction in the Scottish Courts. The contemplated removal of the trust-estate will further put it under the jurisdiction of the Chancery Division of the High Court of Justice in England, and the petitioners fear that in that event their rights in the said trust-estate could only be vindicated, if at all, after long and costly litigation in courts not those of the testator's domicile. Further, it is believed and averred by the petitioners that the said Duncan Mackinnon and Neil Macmichael, in the interests of the said Mildmay Mission to the Jews, and indeed as directed by the said trust-disposition and settlement under which they act, will realise as rapidly as possible the trust-estate and pay it over to the Mildmay Mission. As the said Mission has no domicile in Scotland, and the Scottish Courts have no ordinary jurisdiction over it, it would be extremely difficult, if not impossible, for the petitioners, in the event of their being successful in the said action of reduction, to recover the estate thus paid over to the said Mission.”

The trustees opposed the petition, and stated in their answers that they had no intention of removing the estate out of Scotland, or immediately winding-up the trust in prejudice of the petitioner's action of reduction.

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