Schulze and Another (Lees' Trustees) v. Dun and Others [1911] ScotLR 50 (04 November 1911)

Schulze and Another (Lees' Trustees) v. Dun and Others [1911] ScotLR 50 (04 November 1911)

The liability of the defenders, as representatives of the original trustee, for loss caused by their author's negligence is not extinguished by the negligence or delay (mora) of the succeeding trustees. The plea of mora and personal bar does not apply where the claim is made by trustees on behalf of the beneficiaries, and there is no evidence of payment, discharge, or abandonment of the claim. The indemnity clause does not protect trustees from liability for their own intromissions. The defenders are liable for the loss to the trust estate, with simple interest from the date of Mrs Hugh Lees' death.

Citation
[1911] ScotLR 50
Parties
Pursuer: William Schulze and Mrs Mary Schulze (Lees' Trustees); Defender: John Sanderson Dun and others (representatives of John Dun)
Jurisdiction
Scotland
Judgment Date
04 November 1911
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House
Outcome
Appeal allowed; decree for pursuers.
Legal Topics
Personal Liability of Trustees, Breach of Trust, Negligence of Trustees, Mora and Personal Bar, Interest on Trust Losses
Trust Law Succession Law Personal Liability of Trustees Breach of Trust Negligence of Trustees Mora and Personal Bar Interest on Trust Losses

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Parties

William Schulze and Mrs Mary Schulze (Lees' Trustees)

Pursuer

John Sanderson Dun and others (representatives of John Dun)

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House

Legal Issues

  1. 1 Whether the defenders (representatives of a former trustee) are liable for loss to the trust estate caused by the original trustee's negligence in delivering a disposition without payment.
  2. 2 Whether the pursuers (succeeding trustees) are barred by mora, taciturnity, or their own negligence from insisting on the claim against the defenders.
  3. 3 Whether the indemnity clause in the trust deed protects the trustees from liability for their own intromissions.

Ratio Decidendi

The liability of the defenders, as representatives of the original trustee, for loss caused by their author's negligence is not extinguished by the negligence or delay (mora) of the succeeding trustees. The plea of mora and personal bar does not apply where the claim is made by trustees on behalf of the beneficiaries, and there is no evidence of payment, discharge, or abandonment of the claim. The indemnity clause does not protect trustees from liability for their own intromissions. The defenders are liable for the loss to the trust estate, with simple interest from the date of Mrs Hugh Lees' death.

Court Disposition

Appeal allowed; decree for pursuers.

Orders

  • Defenders found liable to pay the capital sum sued for (£1040) to the trust estate, with simple interest at 3.5% per annum from 27 April 1902 (date of Mrs Hugh Lees' death).
  • No compound interest awarded.