The allegations curiously are made not by one of the beneficiaries but by the living family trustee who consented to his retirement, William Robert Stewart Katz. So the situation appears to be, though it is somewhat bizarre, that the very trustee who consented to and probably requested the retirement and whose Advocate drew up the Deed of Retirement is now saying that that retirement was invalid. The issue was tried by Deemster Corrin who determined that the retirement had been validly made pursuant to section 38. Before us that decision is attacked. Before I consider the validity of the retirement is worthwhile turning to section 38 of the Trustee Act 1961. This says:-

"Where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation or at least two individuals to act as trustees to perform the trust, then, if such trustee as aforesaid by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place."

Now it is perfectly plain if one reads that section that on the retirement of Mr Moore, there were two individuals acting as trustees to perform the trust, that is W.R.S. and W.E. Katz. Mr Moore was certainly desirous of being discharged from the trust; his co-trustees by deed consented to that discharge and consequently on a first reading of section 38 there could appear to be no doubt but that the retirement was valid. What then is the argument of the remaining live family trustee, Mr W.R.S. Katz. Mr Conti on his behalf argued before Deemster Corrin and initially argued before us that the retirement was invalid because into section 38 there should be imported the words "at least two individuals resident in the British Islands to act as trustees to perform the Trust". This interpretation of section 38 was, said Mr Conti, before both Deemster Corrin and ourselves necessary because of the provisions of section 35 of the same Act which reads as follows:-