Bray v Bruce's Executors
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1906 |
| Docket Number | No. 162. |
| Date | 19 July 1906 |
| Court | Court of Session |
Lord Dundas, Lord President, Lord Justice-Clerk, Lord Kinnear, Lord Kyllachy, Lord Stormonth-Darling, Lord Low, Lord Pearson.
Succession—Faculties and Powers—Whether power exercised or not—Exercise of power by general bequest of residue—Two powers of appointment expressly exercised and another not expressly exercised—Expressio unius exclusio alterius—Presumption.—
A bequest of the moveable estate of a testator is to be construed as including any personal estate which he may have power to appoint in any manner he may think proper, and operates as an execution of such power unless a contrary intention appears by the will.
Dictum of Lord Brougham to the above effect in Cameron v. Mackie, 7 W. and S. 106, at p. 141, approved.
By his trust-disposition and settlement a testator gave his widow (1) a power to dispose of certain furniture; (2) a power of appointment to the residue of his moveable estate; and (3) a power of appointment to one-half of the proceeds of the sale of a property called Blackmount.
Failing disposal or appointment by her, he directed (1) the furniture to go to her grandnieces A and B; (2) the residue of his moveable estate to go to A and B equally; and (3) the said half of the proceeds of the sale of Blackmount to go to certain other relatives of his wife.
The widow by her will appointed an executor and directed the residue of ‘my means and estate’ to be divided between A and B, two-thirds to A and one-third to B. With express reference to the powers given to her to dispose of the furniture and of the residue of her husband's moveable estate, she (1) apportioned the furniture, and (2) directed the residue of her husband's moveable estate to be divided between A and B equally.
The widow in her will made no mention of Blackmount.
In a question between the wife's relatives entitled to the said half of the proceeds of Blackmount under the husband's settlement failing an appointment by the widow, and the widow's residuary legatees, held (by the Second Division, with three consulted Judges) (1) that the widow's residuary bequest must be held to be a valid exercise of the power, and to include the said half of the proceeds of the sale of Blackmount, unless her will indicated a contrary intention; and (2) (dub. Lord Stormonth-Darling) that her will shewed no such intention.
Mackenzie v. GillandersSC, 1 R. 1050, distinguished.
Frederick Francis Bray and Others brought an action against (1) the trustees of the late James Bruce, of Inverquhomery, Aberdeenshire; (2) the executors of the late Mrs Diana Bruce, widow of the said James Bruce, and Miss Kate Freeman and Mrs Emily Blanche Freeman or Blackett for their interest as residuary legatees of Mrs Bruce. The pursuers concluded for declarator (1) that a power of appointment conferred by James Bruce under the fourteenth purpose of his trust-disposition and settlement upon his wife, Mrs Diana Bruce, with regard to one moiety of his freehold property at Chislehurst, Kent, called Blackmount, or of the proceeds thereof (which in default of appointment by his wife he directed his trustees to divide among certain persons therein mentioned, including the pursuers), was not validly exercised to any extent by Mrs Bruce by her will or codicils, or otherwise; (2) that the defenders, the executors-nominate of Mrs Bruce, and Miss Kate Freeman and Mrs Emily Blanche Freeman or Blackett, as residuary legatees of Mrs Bruce, had no right or interest of any kind in the said moiety; (3) that the legacy of the said moiety vested in the beneficiaries named in the fourteenth purpose of Mr Bruce's settlement as at the death of Mrs Bruce, and that the said moiety fell accordingly to be divided in terms of the said fourteenth purpose among the pursuers and the other beneficiaries named therein; and (4) that the pursuers were entitled to sell and dispose of their interests by way of sale or security, or otherwise.
James Bruce, of Inverquhomery, died on 12th February 1900, leaving a trust-disposition and settlement, dated 14th May 1897, and two codicils, by which he conveyed certain specified lands, as also all other heritable estate in Scotland belonging to him at his death, and his whole moveable estate, to trustees for the trust purposes therein mentioned.
By the fourth trust purpose the testator directed the trustees to make over to his wife, Mrs Diana Bruce, all the furniture and effects in the mansion-house of Inverquhomery, and other corporeal moveables mentioned, subject to a declaration that ‘in the event of her not having disposed of them during her lifetime, or by any testamentary writing to take effect after her death,’his trustees should ‘divide and deliver such of the said furniture, effects, and others’as might be undisposed of at his wife's death ‘to and amongst her grandnieces, Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick, equally among them.’
By the eighth purpose the testator gave his wife the liferent use of the income of the whole estates, means, and effects conveyed to the trustees.
By the twelfth purpose the testator provided as follows:—‘On the death of my said wife, in case she survive me, my trustees shall pay and convey and make over the residue of my said moveable and personal estate to such person or persons, or in such way or manner as my said wife may direct and appoint by any writing under her hand, and failing such direction and appointment by her, my trustees on her death shall pay and convey and make over the said residue to the said Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick, and the survivors and survivor of them equally, but declaring that should any of them have predeceased the time appointed for such division leaving lawful issue, the share of the said residue to which the party so predeceasing would have been entitled, if alive, shall be paid and divided to and amongst such lawful issue equally, share and share alike. …’
By the fourteenth purpose the testator devised his freehold house and premises at Chislehurst, Kent, known as Blackmount, to his trustees upon trust to permit his wife to occupy it during her life so long as she thought fit to do so, and, inter alia, after her death or in her lifetime, if she elected not to occupy, to sell it (by auction at a reserved price, which he fixed at £13,000), and after her death, or if she died prior to such sale (as happened), to stand possessed of the proceeds ‘upon trust to divide the same into two equal moieties,’and to ‘stand possessed of one moiety thereof upon and for such trusts, intents, and purposes as my said wife shall, whether covert or sole, by will or codicil appoint, and in default of such appointment, or so far as no such appointment shall extend, then upon trust to divide the same’amongst certain persons named, and the children (except certain of them, and among others Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick) of certain persons named. All the persons so named were relatives of the testator's wife, Mrs Diana Bruce. The second moiety was to be held in trust for all or some one or more of his wife's three grandnieces, Kate, Emily, and Dora, as his wife should appoint, and failing appointment, for them equally. The testator directed his trustees to stand possessed of the net rental of Blackmount if let, and of the income of the proceeds thereof if sold during his wife's life, upon trust to pay the same to her during her life.
James Bruce was survived by his wife, Mrs Diana Bruce. Dora Sylvia Warwick died on 15th March 1901 unmarried, and without having attained the age of twenty-one years.
Mrs Diana Bruce died on 10th April 1904, leaving a will, dated 29th April 1903, and three codicils, dated respectively 23d November 1903, 22d March 1904, and 8th April 1904.
By her will she provided as follows:—‘I … with the view of providing for the disposal of my means and estate after my death, hereby appoint Henry Peterkin, solicitor in Aberdeen, to be my executor with all the usual powers; and with reference to the furniture and effects referred to in my said husband's settlement in article 4 thereof, and there directed to be made over to me as well as with reference to any other effects at Inverquhomery belonging to me, I provide as follows’:—(The testatrix then apportioned certain articles and descriptions of articles between her grandnieces Kate Freeman and Emily Blanche Freeman or Blackett and her niece Rose Warwick). ‘The whole furniture and effects referred to in article 4 of my said husband's settlement, and any other furniture and effects belonging to me at Inverquhomery, and not hereby specially disposed of, shall be sold, and the free proceeds … paid over to the said Kate Freeman and the said Emily Blanche Freeman or Blackett in the proportions of two-thirds thereof to Kate and one-third thereof to Emily. … And as regards the remainder of my means and estate I provide that after payment of all my debts and freeing my means and estate of all obligations thereon, the same shall be disposed of as follows:—First in payment of’certain legacies; ‘and I direct that the residue of my means and estate shall be divided between my said nieces’ (explained by codicil as meaning grandnieces) ‘Kate and Emily in the proportions of two-thirds thereof to my said niece Kate Freeman and one-third thereof to my said niece Emily Blanche Freeman or Blackett.’
By her second codicil, dated 22d March 1904, Mrs Bruce, after stating that she had ‘reconsidered the terms of’ her will and desired to make certain additional legacies, bequeathed certain pecuniary legacies and a feu of part of the lands of Inverquhomery belonging to her, and also provided as follows:—‘And further considering that by the twelfth purpose of my late husband's settlement’(dated, &c.) ‘the trustees … were directed to pay’(&c.) ‘the residue of my said husband's moveable and personal estate to such person or persons...
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