Allen v. M'Combie's Trustees [1909] ScotLR 485 (04 March 1909)

Allen v. M'Combie's Trustees [1909] ScotLR 485 (04 March 1909)

A single beneficiary may bring an action for breach of trust against trustees without conjoining other beneficiaries or calling them as defenders; it is not necessary to call representatives of deceased trustees, as liability is based on breach of duty (quasi delict), not contract. The action is competent and will be res judicata against other beneficiaries if properly litigated. Intimation should be made to the absent beneficiary to allow her to sist herself if so advised.

Citation
[1909] ScotLR 485
Parties
Pursuer: Mrs Mary Marshall M'Combie or Allen; Defenders (trustees): Andrew Murray, John Carmichael Bennett, Rev. Thomas Young; Beneficiary (not Party, to Be Intimated): Mrs Louisa M'Combie or Everard
Jurisdiction
Scotland
Judgment Date
04 March 1909
Procedural Posture
Civil Action (trust Law) / Inner House, First Division, Reclaiming Note Against Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; pleas of incompetency and all parties not called repelled; action allowed to proceed.
Legal Topics
Breach of Trust, Title to Sue, Competency of Parties, Res Judicata, Trustee Liability
Trusts and Estates Civil Procedure Breach of Trust Title to Sue Competency of Parties Res Judicata Trustee Liability

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Parties

Mrs Mary Marshall M'Combie or Allen

Pursuer

Andrew Murray, John Carmichael Bennett, Rev. Thomas Young

Defenders (trustees)

Mrs Louisa M'Combie or Everard

Beneficiary (not Party, to Be Intimated)

Procedural Posture

Civil Action (trust Law) / Inner House, First Division, Reclaiming Note Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Can a single beneficiary sue trustees for breach of trust without conjoining other beneficiaries or calling them as defenders?
  2. 2 Is it necessary to call representatives of deceased trustees in actions for breach of trust?

Ratio Decidendi

A single beneficiary may bring an action for breach of trust against trustees without conjoining other beneficiaries or calling them as defenders; it is not necessary to call representatives of deceased trustees, as liability is based on breach of duty (quasi delict), not contract. The action is competent and will be res judicata against other beneficiaries if properly litigated. Intimation should be made to the absent beneficiary to allow her to sist herself if so advised.

Court Disposition

Lord Ordinary's interlocutor recalled; pleas of incompetency and all parties not called repelled; action allowed to proceed.

Orders

  • Intimation to be made to Mrs Everard to allow her to sist herself as pursuer if so advised.
  • Remit to Lord Ordinary to proceed with the action as accords.