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v Orr kwing's

24, 1885


be legally required, in Scotland, and according to the law of Scotland, and under the authority and subject to the jurisdiction of the Scottish Courts alone, and that the said defenders are not bound nor entitled to render any account of the said estate and effects to the said High Court of Justice in England or any of the Divisions thereof, or to any other tribunal furth of Scotland having no jurisdiction in Scotland, nor bound or entitled to part with the custody of any of the title-deeds, writs, or evidents of the said estate."

When the Lord President said, “ The plain duty of the defendants would have been to combine the residue of the English with the Scottish part of the estate, and to administer the combined estate in Scotland as a whole, accord. ing to the directions of the testator," he had not, I think, any intention to assert that the directions of the testator were to work the trust in Scotland. If he did so mean, I think he made a mistake, for I can find no such directions. If he had said, " to combine the residue of the English with the Scottish part of the estate, and administer the combined estate as a whole, according to the directions of the testator, in Scotland so long as they in their discretion thought it the most convenient place to administer it," I think there would have been no difference of opinion. But I rather think that from not having before his mind the distinction between administering as an executor and managing as a trustee, or perhaps not taking the same view of that distinction which I do, he did mean that must be done in Scotland, even though the trustees thought it best and most convenient to put the whole estate into English securities, and substituted new trustees who were all Englishmen.

The declaratory conclusions of the summons would lead to the conclusion that if an action for relief had been brought in an English Court, and the trustees had defended it but been defeated, and they under the compulsion of that judgment had paid, the trustees would have committeda breach of trust, and were liable for it, even though the payment was one which they ought to have made, and which the Court of Session if they had been applied to would have ordered. That could not have been meant. Nor can it have been meant to declare that it was a breach of trust to render accounts to the English Court, even though those accounts went no further than to inform that Court of what they had done in Scotland under the compulsion of the Court of Session.

For these reasons I think that, whatever may be the result as to the substance, the interlocutor appealed against must be varied, but I think the Court of Session bad certainly jurisdiction to sequestrate the estate in Scotland, and change the trustees, although the effect was to baffle the action of the English Court; for I know of no principle of international law to prevent them from so doing, if the case was one to make it proper so to do. Whether they ought to do so, and whether this House as a Court of Appeal should alter what the Court below has done, though witbin its jurisdiction, on the ground that it was an injudicious use of its jurisdiction, depends on other grounds.

There is very little to be found as to the principles which should regulate the discretion of a Court in changing trustees; the only case which 1

know on the subject is Letterstedt v. Broers (9 Appeal Cases, 371). The part of the judgment wbich bears on this point begins at p. 385. The conclusion which the Judicial Committee of the Privy Council came to there, on principle (for they could find no authorities), was that the Court must be mainly guided by the welfare of the beneficiaries, and that “if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate” (p. 386). On that principle, I think that if the proportions of the Scottish funds to the English had been reversed, and the funds in England had been £400,000 to £20,000 in Scotland, it would not have been a proper exercise of the jurisdiction to remove the trustees.

I doubt a little whether the Judges below directed their minds sufficiently to the question whether in this particular case it might not have been better for the interests of all to allow the administration suit to go on, but I am inclined to think, on the whole, that with the undertaking which was given by the appellant's counsel it may be better to allow the removal.

I agree in the proposed form of order.

LORD Watson-My Lords, in regard to some of the points raised upon this appeal I have never entertained any serious doubt; but there are questions involved in it upon which I have felt much difficulty in forming an opinion satisfactory to my own mind. That difficulty has been owing in some measure to the circumstance that the record appears to have been framed vith a view to the leading conclusion of the simmons for declarator and interdict irrespective of the alternative conclusions to which effect bas been given by the interlocutor of the First Division.

It is unncessary for me to refer to the circum. stances in which this litigation had its origin, seeing that these have already been fully stated in the judgment delivered by my noble and learned friend Lord Blackburn. I shall content myself with saying that in my opinion the trust created by the mortis causa disposition and settlement of the late John Orr Ewing is a Scottish trust, and that prima facie his trustees are amenable in all questions touching the administration of the trust-estate to the jurisdiction of the Courts of Scotland. The truster appears to me to have contemplated that his estate should be administered in Scotland; he expressly declares that the trustees are to have the powers, privileges, and immunities conferred upon trustees by any Act of Parliament applicable to Scotland, and he authorises the recording of his settlement as a Scottish deed. In the case of a foreign trust-foreign in the same sense in wbich I have ventured to designate the late Mr Orr Ewing's trust as Scottish—the Court of Session would decline, even if the trust included landed estate in Scotland, to repair any lapse of admin. istration occasioned by the failure or death of the trustees (Brockie and Another v. Peters, 2 R. 923).

I do not of course intend to suggest that domiciled Scotsmen acting in the execution of a Scottish trust, when temporarily resident in a

v Orr Ewing's

24, 1885

foreign country, may not, by reason of their personal presence, be subjected qua trustees to the jurisdiction of the tribunals of that country. And I think it may be safely asserted that in some cases it would be the plain duty of the Courts of Scotland to recognise and give effect to these foreign proceedings, and that in other cases it might be their duty as well as their right to disregard them. If a foreigo creditor in such circumstances obtained a regular judgment by process in his own Courts against Scottish trustees for a debt incurred to him by the trustees, I do not think the Court of Session could or would examine the merits of that judgment or refuse to enforce it. On the other hand, if a single Scottish beneficiary followed the trustees abroad, and during their temporary residence there sued them and obtained decree against them for his share of the trust estate, I do not think that the Courts of Scotland, in any judicial distribution of the estate, would be precluded by that decree from considering and determining, according to the principles of Scottish law, the amount of the share to which each of the beneficiaries, excluding the holder of the decree, was entitled.

In the present case it is maintained for the infant Malcolm Hart Orr Ewing, and his next friend George Wellesley Hope, using the name of the late Mr. Orr Ewing's trustees, that the First Division of the Court of Session had no jurisdiction to sequestrate the trust-estate and appoint a judicial factor in respect of the proceedings then pending at their instance before the High Court of Chancery in England. The power of the First Division to make the appointment contained in their interlocutor of 29th February 1884 was not in my opinion ousted by these proceedings. That is really the operative part of the judgment of the Inner House, but it also contains a finding and decerniture in terms of the declaratory conclusions, although it does not give effect to the conclusion for interdict which was affirmed by the Lord Ordinary. 1 have come without much difficulty to the conclusion that the declaratory decree cannot be sustained upon the reasons which have been assigned by the learned Judges in the Courts below, and I entertain serious doubts whether it would in any circumstances be either necessary or expedient to pronounce such a decree. I am at present disposed to think that whenever a real conflict of jurisdiction does arise between two independent tribunals, the better course for each to pursue is to exercise its own jurisdiction so far as it availably can, and not to issue judgment proclaiming the incompetency of its rival.

The 19th Article of the Treaty of Union, which is referred to in the opinions of the learned Judges, appears to me to have a very remote bearing upon the points raised in this appeal. It does establish what has not been controverted in the argument addressed to your Lordships, that the Court of Session is an independent national tribunal, as independent and of as high authority within Scottish territory as the Court of Chancery witbin the realm of England. I agree with Lord Deas that the judicatories of Scotland and of England are as independent of each other in their respective territories as if they were the judicatories of two foreign states (11 Session Cases, 4th Series, p. 637.) In Maclachlan v. Meiklam and Others

(19 Session Cases, p. 960), which is referred to in the opinion of the Lord President, the Treaty of Union had a very direct hearing upon the question before the Court, because in that case the Master of the Rolls had ordered trustees to deposit in the Record and Writ Office certain titledeeds which were on the register in Scotland, whereas the 24th Article of the Treaty expressly declares that, notwithstanding the Union, all records, rolls, and registers whatever, public and private, shall “continue to be kept as they are within that part of the United Kingdom now called Scotland, and that they sball so remain in all time coming." In this case the terms of the Treaty of Union appear to me to throw very little light upon the question which the House has to decide.

In deference to the favour with which it was received by the learned Judges in both Courts, I have very carefully considered the argument which was pressed upon us for the respondents, founded upon 21 and 22 Victoria, cap. 56, which now regulates confirmations in Scotland, but I am unable to assent to it. The provisions of that Act do not appear to me to deal directly or indirectly with the subject of jurisdiction, or to indicate that the Legislature either intended to confer upon the Courts of Scotland any new jurisdiction, or to abridge any jurisdiction wbich, before it passed, might have been lawfully exercised by the Courts of England and Ireland. It is thereby enacted that the inventory lodged with a petition for confirmation in Scotland may, when the deceased had bis principal domicile there, include his personal estate in England and Ireland, and that instead of taking out letters of administration in these countries the executor-nominate may obtain a good title to such personal estate by having his testamenttestamentar duly sealed in the Courts of Probate in London and Dublin. But the effect of that proceeding as declared by 21 and 22 Victoria, cap. 56, secs. 13 and 14, is that the Scottish confirmation when sealed shall have the like force and effect in England and Ireland as if letters of administration have been granted by their respective Courts of Probate.

Then according to the statutory form of a Scottish decree (21 and 22 Victoria, cap. 56, Schedules D and E) confirmation to the office is granted, subject to the proviso that the executor shall render just count and reckoning for his intromissions with the deceased's estate, not in the Courts of Scotland, but “when and where the same shall be lawfully required." I venture to think that the jurisdiction of the Scottish Courts, whether it be exclusive or not, in regard to the administration of the moveable estate of persons dying domi. ciled in Scotland, and there confirmed, must depend upon general principles of jurisprudence as accepted in the law of Scotland, and not upon the provisions of 21 and 22 Victoria, cap. 56, or of any other statute.

I am, moreover, of opinion that the gentlemen who at the commencement of this litigation were executing the trusts of Mr Orr Ewing's settlement must be regarded not as executors but as trustees. The deceased conveyed to them in their capacity of trustees the universitas of his estates, heritable and moveable, and his intention must have been that, after his moveable estate was ingathered and his debts paid, the

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whole should be administered as one trust, and not that they should be trustees quoad his heritable and executors quoad his moveable estate. No doubt after conveying all his estate to his trustees he appoints them to be his executors, but that is merely an ancillary appointment made with the view of giving them an active title to recover, if necessary, his moveable estate in order to its being administered by them as his trustees. It would have been in entire accordance with the just construction of his disposition and deed of settlement had one of the trustees nominated been confirmed as executor, and after paying debts transferred the free executory funds to the whole body of trustees to be disposed of by them in conformity with the purposes of the trust. In the case of testate succession confirmation was never required by the law of Scotland in order to take moveable estate out of the hereditas jacens of the deceased. By that law the title of a testamentary executor to personalty of which he has obtained possession is complete without confirmation, which is, however, necessary in order to give him an active title against debtors to the estate who decline to pay without it. The provisions of 21 and 22 Vict. cap. 56, and of previous statutes regulating confirmation, in so far as these require that the inventory shall include the whole personal estate of the defunct, were enacted for fiscal purposes, and vot for the purpose of vesting the executor with those assets to which he might have a perfect title independently of his confirmation.

That the Courts of Scotland will in certain circumstances sustain their own jurisdiction over the trustees of a foreign will who are resident in Scotland is a proposition which does not appear to me to admit of dispute. In Ferguson and Others v. Douglas, Heron, & Company, 3 Pat. App. Cas. 510, Lord Loughborough said that he had • no doubt as to the competency of the Court of Session in a case where either the persons of executors or effects of the deceased are within their jurisdiction.” That was an action brought for recovery of debt by a banking firm in Scotland, and I cannot suppose that Lord Loughborough meant to lay down the law (for the point was not before him) to the effect that the Courts of Scotland either did exercise or were bound to exercise jurisdiction over foreign trustees in every case in which the persons of trustees or funds of the trust were to be found in Scotland. The principles which regulate the exercise or non-exercise of jurisdiction in such cases have now been settled by a long course of decisions. These decisions establish a broad distinction between claims of debt at the instance of Scottish creditors and claims by persons beneficially interested in the estate, which involve questions as to the due execution of their office by the trustees, or as to the rights and interests of other beneficiaries. Thus in Campbell v. Rucker, March 1809, Hume's Dec. 258, an action proceeding on arrestment jurisdictionis fundanula causa was sustained at the instance of a Scottish creditor against the executors of a West Indian will, who had obtained letters of administration from the Prorogative Court of Canterbury. The Lord Ordinary repelled a preliminary defence of no jurisdiction,

in respect the present action is not brought for the purpose of bringing an English creditor to a general accounting, but that of operating pay.

ment of a particular debt out of a fund belonging to the defunct and attached by arrestment in Scotland for that purpose," and the Court adhered. But in Brown's Trustees v. Palmer, 9 Sbaw, 224, a case similar in all respects to the preceding, with this single exception that this summons was not at the instance of a creditor of the defunct, and concluded for an account of the executor's intromissions and payment of the balance to the pursuers, the Second Division, affirming the judgment of the Lord Ordinary, dismissed the action. A like decision was given in the case of Macmaster v. Macmaster, 11 Shaw, 685.

It is no doubt true that the reason assigned by the Scottish Courts for declining to entertain actions against foreign trustees or executors when they come to Scotland, or when trust or executory estate is under arrestment there, is not that the Court of Session is an incompetent but an inconvenient forum. It necessarily follows that the plea of forum non conveniens must fail in cases where the trustees are not liable to suit, or are evading an accounting, in the proper forum of the trust which the law of Scotland regards as the only convenient forum so long as the pursuer can there obtain the redress which he seeks. In Macmaster Macmaster, 11 Shaw, 685, the Lord Justice-Clerk (Boyle) said decisions go to this, that if the executor of a foreign will come here he may be called before this Court, because he could not in the foreign country.” And the Lord President (Inglis), in Clements v. Macaulay, 4 Macph. 592, which was a case of partnership accounting, observed that “the cases in which the plea of incon. venient forum has been sustained are chiefly of two classes-1st, Where foreign executors have been sought to be called to account in this country for the foreign executory estate situated in another country. In these cases the question always was, whether it was more for the true and legitimate interest of the executory estate and all the claimants tbat the distribution should take place where the executors have had administration. There is of course in most cases a strong presumption in favour of that consideration, and accordingly the plea is generally sustained in such

I have no fault to find with the explanation thus given by the present head of the Court of the rationes by which the forum in which administration has taken place has also been held by Scottish Courts to be the one convenient forum to the exclusion of their own jurisdiction. But it is equally accurate to say that the only reason which has induced the Courts in Scotland in such cases to uphold their own jurisdiction has been, as stated by Lord Justice-Clerk (Boyle), because the trustee or executor could not be called to account in the more convenient forum,

I am not aware of any authority in the law of Scotland for entertaining an action in the Court of Session against foreigu trustees who can be called to account, and who are willing to account in the proper forum, though action has been sustained in cases where they were neither liable nor willing to answer in that forum. There is another and intermediate class of cases in which it is doubtful whether the courts of the forum conveniens may have it within their power to give the pursuer a full remedy, or to enforce their orders against the persons of the trustees


v Orr Ewing's Trs


and the trust-estate. In such cases the Court of Session will not dismiss the suit, but will sist procedure, not with the view of superseding, but of aiding the action, and supplementing the powers of the foreign court in order that full justice may be done.

The case of Peters v. Martin, 4 Shaw, 138, illustrates the grounds upon which the Court of Session has notwithstanding the plea of inconvenient forum, sustained its own jurisdiction against the trustee of a foreign will. Martin, the defender, was sole trustee under an English will, the estate being partly situated in England and partly in the Colonies. He had taken out letters of administration in England, but at the time when the action was raised he had returned to and was resident in Scotland, his native country. The action was at the instance of the trust beneficiaries, and concluded for implement of the will, and for investment, in terms of the trust, of a balance of £7500, which it was alleged he had wrongfully retained in his hands. The pursuers averred that they were unable to institute proceedings against him in England so long as he was resident in Scotland. Martin objected to the jurisdiction of the Court of Session, but the Lord Ordinary sustained the action. The Second Division, however, recalled bis Lordship’s interlocutor, and superseded the cause in consequence of an allegation by Martin that he was willing to submit to the jurisdiction of the Court of Chancery, and that he had actually filed a bill in that Court. It subsequently appeared that his allegation was untrue, and that no effectual pro. ceedings had yet been taken by bim in Chancery, and accordingly the Second Division allowed the action to proceed, reserving to him to be heard upon his allegation that he had put himself within the jurisdiction of the Court of Chancery. The report does not give the opinions of the Judges, but the ground of the decision was thus explained by the Lord Justice-Clerk (one of the Judges who took part in it) in the subsequent case of Macmaster v. Macmaster, 11 Shaw, at page 688 -“In the case of Peters the executor was here, and refused to appear in Chancery." To my mind it is obvious that if Martin had actually done that which he merely professed his willingness to do, and had submitted himself to the jurisdiction of the English Court of Chancery in respect of the matters embraced in the Scottish action, the Second Division would not have sus"ained it.

Macmaster v. Stewart, 12 Shaw, 731, furnishes an

illustration of that class of cases in which the Court, whilst refusing to dismiss the action, yet stay all procedure in it unless and until it has been ascertained that the pursuers cannot obtain an effective remedy against the trustees in the proper forum of the trust administration. In that case Mrs Stewart, a domiciled Scotswoman, one of the residuary legatees under an English will, upon the refusal of the trustees to accept or act, took ont letters of administration in England, and intromitted with the whole estate falling under the will, consisting of real as well as moveable estate in England. The testator had by bis will directed that if any of his legatees harrassed the executors the latter should file a bill in the High Court of Chancery so that his will might be carried into execution under the direction of that Court. All debts and

special legacies had been paid shortly after the death of the testator, which occurred in the year 1810, but there had been an undue delay in realising and dividing the residue, und in the year 1832 an action was raised against Mrs Stewart in the Court of Session by two of the residuary legatees, concluding for implement of the trusts of the will. The pursuers averred their inability to bring Mrs Stewart to an accounting before the Court of Chancery because she lived beyond its jurisdiction, and had removed great part of the proceeds of the trust-estate to Scotland. The Lord Ordinary (Corehouse) sisted process for fourteen days in order that the defenders (Mrs Stewart and her husband) might have an opportunity of filing a bill or adopting other proceedings for making themselves accountable in the Court of Chancery. Availing themselves of the opportunity thus afforded them the defenders did file a bill in the Court of Chancery, but the pursuers still insisted on their right to proceed with the Scottish action, alleging that the defenders could at any time abandon the proceedings instituted by them in England, and so evade a complete accounting. The Lord Ordinary thereupon directed a case and queries to be laid before English counsel, and being satisfied by the answers of counsel that the defenders could not defeat the English proceedings by withdrawing or abandoning the bill which they filed, his Lordship“ sisted further procedure in hoc statu.In a note to his interlocutor his Lordship said—“On the grounds, therefore, both of expediency and the will of the testator, formerly referred to, it seems imperative that this process should be sisted until the accounting in Chancery is brought to a close. It is possible that the aid of this Court may be afterwards required to enforce the execution of the decree.” On a reclaiming-note to the First Division their Lordships adhered to the inter. locutor of the Lord Ordinary. The Lord President (Hope) said, “If any improper delay is allowed by the defenders to occur in their account. ing in Evgland it is open to the pursuers to go to the Lord Ordinary, and crave his Lordship to proceed here.” To the same effect Lord Mackenzie observed—“It may happen that circumstances occur before that period (i.e., the close of the accounting in England) which will make it necessary to go on with the accounting here." These observations appear to me to refer to the possibility of the defender Mrs Stewart (who, to say the least, had been very remiss in the performance of her duties as a trustee, and had not displayed much anxiety to render an account of her intromissions) evading the jurisdiction or disobeying the orders of the High Court of Chancery. The purpose of the learned Judges in making these observations was to make it clear that in the event of any such circumstances occurring the pursuers were not to be precluded from moving the Scottish Court by the terms of the Lord Ordinary's note.

I think it is worthy of observation, that, as shown by the authorities to which I have already referred, the Courts of Scotland in declining jurisdiction over foreign trustees do not rely upon the circumstances of there being no pending litigation in the proper forum. Although there be no lis alibi pendens, it is sufficient to oust their jurisdiction on the plea of forum non conveniens, either that the pursuer can obtain his

v Orr Ewing's

24, 1885

remedy by a suit in the proper forum, or that the trustee, called as a defender, expresses his will. ingness to institute, and accordingly does institute, proceedings, proceeding in that forum by means of which the pursuer can have the redress which he claims. There were no proceedings depending in the foreign forum when action was raised before the Court of Session in Campbell v. Rucker (Hume Dec. 258), Mucmaster v. Macmaster (11 Shaw, 685), or in Macmaster v. Stewart (12 Shaw, 731). In Peters v. Martin (4 Shaw, 138) it was alleged by the defender that an effective proceeding at his instance was depending before the Court of Chancery, but after an opportunity was allowed him of substantiating his allegation their Lordships of the Second Division were satisfied that the statement was untrue, and they permitted the action to proceed ou the ground that the defender refused to submit himself to the jurisdiction of the English Court.

There are two decisions which have sometimes been cited as showing that the Scottish Courts have gone further in sustaining their jurisdiction over English executors than the principles which I have stated would justify. I refer to Morrison v. Ker (Morison's Dict. 4601) and Scott v. Elliott (Morison's Dict. 4845). It was explained, however, that in neither of these cases was it sought to call an administrator to account for his intromissions with the trust or executory estate, and that explanation is in my opinion correct.

In Morrison v. Ker (Morison's Dict. 4601) the deceased, Alexander Ker, who was resident in England, left a will by which he bequeathed the liferent of bis estate, which consisted of personalty, to his sister Janet, and the fee on her death to his next lawful heir or heiress of blood." The liferentrix, who was a domiciled Scotswoman, took out letters of administration in the Prerog. ative Court of Canterbury, in virtue of which she uplifted the estate and transferred it to Scotland. Before her death she delivered the whole estate to James Ker, a domiciled Scotsman, believing that on her death he was entitled to it as next lawful heir of blood of the deceased. After her death an action was brought against James Ker by several persons resident in Scotland, who claimed a share of the estate as being along with the defender the next-of-kin of the deceased. It was pleaded for the defender that as an English executor he was only liable to answer in the Courts of England, and that the action ought to be dismissed, but the Court repelled the plea. The defender was not in point of fact an executor, and the title by which he held the deceased's estate was pot derived from any English Court. He was in reality defending his own right as sole beneficiary against pursuers who alleged that they were also beneficiaries and that payment had been made to him under error by the executor then deceased. Then in Scott v. Elliott (Morison's Dict. 4845) the defender Maria Elliott, who had always lived in Scotland, administered to the personal estate of her father in England, where he was resident at the time of his death, not under any settlement, but as the hæres in mobilibus of the deceased. The defender's mother had obtained a decree of the commissaries divorcing her from the deceased and decerning him to pay to her an annual sum for the aliment of the defender, and the action was brought against the defender

as her father's representative for payment of arrears due under that decree. The defender did not allege that the succession which she took from her father was insufficient for payment of his debts, but she contended that “from his long residence in England every claim against him, and consequently against his representatives, ought to be decided by its laws." That contention was plainly untenable as a plea ousting the jurisdiction of the Court. The claim made was for a debt due under a Scottish decree, and it in. volved no question either as to the due administration of the executory estate of the deceased, or as to the rights of parties having beneficial in. terests.

If I bave rightly stated the principles upon which the Courts of Scotland exercise or decline jurisdiction over foreign trustees, it appears to me to be a necessary consequence that the Courts below bave erred in giving decree in terms of the declaratory conclusions of the summons, because these conclusions affirm the absolute incompetency of the High Court of Chancery to entertain the suit which was brought before it. There is to my mind a broad distinction between a radical defect of jurisdiction, and jurisdiction to entertain, stay, or dismiss a suit according to the discretion of the Court. The latter is the kind of jurisdiction exercised by the Scottish Courts in the case of foreign trustees, and they are, in my opinion, bound ex comitate to allow a similar jurisdiction to foreign courts in the case of Scottish trustees. How far the Courts of Scotland are entitled or bound to criticise and control the discretion of a foreign court in sustaining its own jurisdiction when that discretion has been honestly exercised it is not necessary for the purposes of this appeal to consider, and it is not in my opinion expedient to determine such nice questions until they actually arise for decision. With reference to the English administration suit at the instance of the parties who are now prosecuting this appeal, I desire to make these observations. It is true that in the law of Scotland there is no form of process wbich is known by the name of an administration suit, and also that the Scottish Courts do not undertake to superintend generally the administration of trusts, and do not interfere with the management of the trustees appointed by a testator unless a relevant case is stated which calls for their interference. But the Courts are at all times ready to entertain a complaint at the instance of a beneficiary, if made ir proper form, to the effect that the trustees at mismanaging or dilapidating the trust-estate, or that they have failed or unduly delayed to pay or to set aside and secure the provisions made in his favour by the settlement of the truster, and to give him such remedy as may seem just. And I entertain no doubt that the allegations made by the compearing appellants in their Chancery proceedings would have been relevant to sustain an action of count and reckoning in the Court of Session at their instance against the nominal appellants with appropriate conclusions for having their share of the late Mr Orr Ewing's estate either paid to them or set apart and secured for future payment. And it does not appear to me to admit of any doubt that if the circumstances of this case had been reversed, if the trust of the late Mr Orr Ewing had been Euglish in the same sense in which I have described it as Scottish, the

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