Johnston v. Johnston [1900] ScotLR 37_344 (24 January 1900)

Johnston v. Johnston [1900] ScotLR 37_344 (24 January 1900)

A petition for removal of trustees under section 8 of the Trusts (Scotland) Amendment Act 1891 may competently be presented to the Outer House, as the Act does not restrict jurisdiction to the Inner House, and established practice supports this. Continuous absence from the United Kingdom for more than six months incapacitates trustees and justifies their removal.

Citation
[1900] ScotLR 37_344
Parties
Petitioner: Captain Archibald Francis Campbell Johnston; Respondent: Augustine Campbell Johnston; Respondent: Conway Campbell Johnston
Jurisdiction
Scotland
Judgment Date
24 January 1900
Procedural Posture
Petition for Removal of Trustees / Appeal (reclaiming Motion) From Lord Ordinary to Inner House
Outcome
Petition for removal of trustees granted; petition for appointment of judicial factor refused.
Legal Topics
Removal of Trustee, Continuous Absence From Jurisdiction, Court Jurisdiction, Trusts (scotland) Amendment Act 1891
Trusts and Estates Civil Procedure Removal of Trustee Continuous Absence From Jurisdiction Court Jurisdiction Trusts (scotland) Amendment Act 1891

Case Brief

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Parties

Captain Archibald Francis Campbell Johnston

Petitioner

Augustine Campbell Johnston

Respondent

Conway Campbell Johnston

Respondent

Procedural Posture

Petition for Removal of Trustees / Appeal (reclaiming Motion) From Lord Ordinary to Inner House

Legal Issues

  1. 1 Whether a petition for removal of trustees under section 8 of the Trusts (Scotland) Amendment Act 1891 may be competently presented to the Outer House of the Court of Session
  2. 2 Whether continuous absence from the United Kingdom for more than six months incapacitates trustees and justifies removal

Ratio Decidendi

A petition for removal of trustees under section 8 of the Trusts (Scotland) Amendment Act 1891 may competently be presented to the Outer House, as the Act does not restrict jurisdiction to the Inner House, and established practice supports this. Continuous absence from the United Kingdom for more than six months incapacitates trustees and justifies their removal.

Court Disposition

Petition for removal of trustees granted; petition for appointment of judicial factor refused.

Orders

  • Augustine Campbell Johnston and Conway Campbell Johnston removed from office of trustee.
  • Petition for appointment of judicial factor refused.