Dick's Trustees v Cameron
| Jurisdiction | Scotland |
| Judgment Date | 06 June 1907 |
| Date | 06 June 1907 |
| Docket Number | No. 150. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Stormonth-Darling, Lord Low, Lord Ardwall.
Succession—Faculties and Powers—Power of Apportionment—Validity of Exercise of Power—Partial or total invalidity—Gift of Liferent with fee to persons not objects of power.—
By an antenuptial contract of marriage the trustees were directed, on the death of the survivor of the spouses survived by issue of the marriage, to hold and pay over the estate conveyed to them by the wife to or for behoof of the children of the marriage ‘in such proportions and subject to such conditions’ as the wife, whom failing, the husband, might direct, and failing such direction equally.
By her will the wife, inter alia, directed her trustees to hold ‘for my daughter A. the sum of £20,000,’ and pay her certain sums per annum till she was twenty-five, and thereafter the whole income, and upon her death to divide the capital among A.'s children equally. Failing children at A.'s decease the money was to revert to the general estate of the testatrix.
Held that this was not to any extent a valid exercise of the power of apportionment, there being no initial gift of the £20,000 to the daughter, which could be separated from the limitation of her right to a liferent, with the fee to her children, who were not objects of the power.
M'Donald v. M'Donald's Trustees, 2 R. (H. L.) 125, distinguished.
Succession—Faculties and Powers—Power of Apportionment—Validity of Exercise of Power—Partial or Total Invalidity—Option given between small sum and larger benefit not in accordance with power.—
By an antenuptial contract of marriage the trustees were directed, on the death of the survivor of the spouses survived by issue of the marriage, to hold and pay over the estate conveyed by the wife to or for behoof of the children of the marriage ‘in such proportions and subject to such conditions’ as the wife, whom failing the husband, might direct, and failing such direction, equally.
After the death of the wife the husband executed a deed of apportionment by which, in professed exercise of the power, he directed the trustees to pay to each of his daughters £500, and the whole residue to his son, but declared that the daughters should have the option of either accepting the £500 or of claiming the liferent of certain larger sums specified.
Held that the power of apportionment had not been to any extent validly exercised, in respect that the professed apportionment was not a bona fide or legitimate exercise of the power, the first alternative, which would by itself have been valid, having been inserted merely for the purpose of concussing acceptance of an invalid exercise of the power.
Succession—Faculties and Powers—Power of Apportionment—Whether power exercised or not.—
Questionwhether a power of apportionment among a specified class had been effectually exercised by a general testamentary settlement which did not mention the power.
By antenuptial contract of marriage between Henry Knox Dick, merchant in Glasgow, and Cecilia Isabella Mackenzie, daughter of James Todd Mackenzie of Glenduffhill and Glentore, dated 26th September 1873, the intended wife conveyed to the trustees therein named her whole estate, heritable and moveable, then belonging or which should belong to her, or to which she might succeed during the subsistence of the marriage, in trust for the purposes therein mentioned.
The second trust purpose was as follows:—‘(Second) After the death of such survivor (i.e., the survivor of the spouses), and there being issue of the marriage surviving, the said trustees shall hold, pay over, or assign the whole of the said means and estate hereby conveyed to them by the said Cecilia Isabella Mackenzie to or for behoof of the child or children of the marriage, and that in such proportions and subject to such conditions as the said Cecilia Isabella Mackenzie, and whom failing, the said Henry Knox Dick, may direct by any writing under her or his hand, and failing such direction, then equally, share and share alike, the issue of any child or children of the marriage always coming in room of the parent deceasing.’
Mrs Cecilia Isabella Mackenzie or Knox Dick died on 30th August 1902, survived by her husband, Henry Knox Dick, and by four children, viz., Mrs Cecilia Isabella Knox Cameron, wife of Duncan Alexander Cameron, Mrs Agnes Mackenzie Higinbothom, wife of Henry Newburgh Higinbothom, Henry Cecil Knox Dick, and Miss Alice Helen Knox Dick.
Mrs Dick left a holograph will, dated 24th February 1901, by which she provided:—‘My trustees shall hold the sum of £7000, the interest of which shall be paid to my daughter Cecilia Isabella, wife of Duncan Alexander Cameron, half-yearly. In the event of her decease and leaving a child or children, my trustees shall have the power of allowing for their proper upbringing and education the sum of £50, fifty pounds, each, until such child or children shall attain the age of 25 years, when the whole of the said £7000, together with any accrued interest thereon, shall be equally divided among them. … But failing the survival of my daughter Cecilia Isabella and her child or children, then the whole of the above money shall be equally divided between my son Henry Cecil and my daughter Alice Helen. My trustees shall hold for my daughter Alice Helen the sum of £20,000, and shall pay to her until she attain the age of 18 years the sum of £100 a year, and thereafter until she attains the age of 25 years the sum of £300 a year, and thereafter the whole income derived from the above sum of £20,000, but all of the above sums shall not be liable for any of her own debts or those of any husband she may have. In the event of her decease, she being married and having children, then the whole of the money above mentioned shall be equally divided among them when the youngest child shall have attained the age of 25 years … but failing there being any children at her decease, the above-mentioned money shall revert to my general estate. … I leave my son Henry Cecil sole residuary legatee of all my estate, subject to any bequests, legacies, or donations I may hereafter make. My trustees shall hold one-half of said residue for his benefit, paying him the free annual proceeds of the whole residue, but not subject to any of his debts or deeds, and in the event of his decease, he being married and having children, all the above money shall be equally divided among them when the youngest shall attain the age of 25 years … but failing his leaving any lawful children, or their dying before the above period of division, then the whole of said money shall revert to my general estate. … I request my trustees to pay to my daughter Agnes Mackenzie, wife of Harry Newburgh Higinbothom, half-yearly, the sum of £50 during her lifetime.’ The testatrix also left legacies to certain charities and to a cousin.
In this will Mrs Dick did not refer to the power of apportionment conferred upon her by the marriage-contract. She nominated trustees who were different from those appointed by the marriage-contract.
Mr Dick died on 19th April 1905 survived by the four children above mentioned. After his wife's death he had executed a deed of apportionment dated 20th July 1904, by which he provided as follows:—‘I, …...
To continue reading
Request your trial
-
Gemmell's Trustees v Shields
...Trustees v. Joy, 1910 S. C. 1029, Lord Johnston at p. 1034, Lord President Dunedin at pp. 1035, 1036; Dick's Trustees v. Cameron,1907 S. C. 1018; Burns's Trustees v. Burns's TrusteesSC,1935 S. C. 905, Lord President Normand at pp. 910, 911; In reLane, [1908] 2 Ch. 581, Swinfen Eady, J., at ......
-
Alexander's Trustees v Alexander's Trustees
...p. 406, Lord Skerrington, at p. 408. 3 Paterson's Trustees v. Joy, 1910 S. C. 1029, at p. 1034. 4 (1888) 16 R. 95. 5 (1889) 16 R. 983. 6 1907 S. C. 1018. 7 (1905) 7 F. 8 (1904) 6 F. 968. 9 (1826) 4 S. 679. 10 (1833) 7 W. &S. 106, at p. 141, (1831) 9 S. 601. 11 In re Hayes. Turnbull v. Hayes......
-
Ewing's Trustees v Ewing
...Trustees v. NeilSC, March 7, 1902, 4 F. 636; Middleton's Trustees v. MiddletonSC, July 7, 1906, 8 F. 1037; Dick's Trustees v. Cameron, 1907, S. C. 1018; Matthews Duncan's Trustees v. Matthews DuncanSC, Feb. 20, 1901, 3 F. 533. 3 Mackenzie's Trustees v. Kilmarnock's Trustees, Dec. 4, 1908, i......
-
Crum Ewing's Trustees v Bayly's Trustees
...in the negative of branch (a) thereof; and found it unnecessary to answer the remaining questions. 1 Dick's Trustees v. Cameron, 1907 S. C. 1018. 1 Bonhotes v. Mitchell's TrusteesSC, May 27, 1885, 12 R. 984; Dundas v. Dundas, Dec. 22, 1830, 4 W. & S. 2 Wright's Trustees v. WrightSC, Feb. 20......