Durie's Trustees v Osborne
| Jurisdiction | Scotland |
| Judgment Date | 07 July 1960 |
| Docket Number | No. 50. |
| Date | 07 July 1960 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
International LawSuccessionPower of appointment exerciseable by any testamentary writingDonor and donee of power domiciled in different countries at time of respective deathsWhat law applicable to determine whether donee's will exercised power.
A testatrix died domiciled in Scotland leaving a trust-disposition and settlement by which she gave to her niece an alimentary liferent of part of her estate and conferred on her a power of appointment over the fee to be exercised by any testamentary writing executed by her. The niece subsequently died, domiciled in either Southern Rhodesia or South Africa, leaving a will by which she bequeathed her whole means and estate to her husband. According to the laws of Southern Rhodesia and South Africa, which are identical on the matter, the exercise of a power of appointment requires some reference, express or implied, to the power or the property to which it relates. In a question as to whether the niece's will validly exercised the power of appointment,
Held (1) that the question depended on the niece's intention, and since there was nothing in her will to show that she intended otherwise, this fell to be ascertained by construing her will according to the law of her domicile, and (2) that since, on construction, her will contained no such reference as is required by the laws of Southern Rhodesia or South Africa, it did not constitute a valid exercise of the power of appointment.
Anderson v. CollinsUNK, (1913) 1 S. L. T. 219,approved; Kennion v. Buchan's TrusteesUNK,(1880) 7 R. 570, distinguished. English authoritiesdiscussed.
The circumstances in which this special case was brought are set forth in the case itself, which stated, inter alia:"(1) Miss Alice Durie (hereinafter referred to as the testatrix) died domiciled in Scotland on 14th January 1946, leaving a trust-disposition and settlement dated 19th March 1926, and relative codicils dated respectively 9th September 1931, and 13th February 1936, registered in the Books of Council and Session on 4th February 1946 (2) By said trust-disposition and settlement the testatrix conveyed to trustees therein named her whole means and estate heritable and moveable real and personal wheresoever situated which should belong to her or of which she should have the power of disposal at the time of her decease in trust for the purposes therein set forth. By purpose (Fourth) of said trust-disposition and settlement the testatrix directed as follows : (Fourth) I direct my trustees to hold the residue of my means and estate and they shall pay the free annual income and proceeds thereof to and amongst my nieces the said Agnes Margaret Osborne, Joan Cossie Oliphant Woods and Billa Bozzi equally between them and I declare that the said income shall be strictly alimentary to my said nieces It was further provided in said trust-disposition as follows : (Fifth) On the death of each of my nieces should she survive me or in the event of her predeceasing me my trustees shall hold a one-third share of the capital of the said residue for behoof of her lawful children if any payable to them or to the issue of such of them as may have predeceased their parent in such shares and proportions and at such times as my niece so deceasing may direct and failing any such direction then equally between them on their attaining majority and failing any children or remoter issue the said share of capital shall be paid to such person or persons as my niece so deceasing may have directed by any testamentary writing executed by her and failing such direction the said share shall accresce to the funds held by my trustees for behoof of my surviving nieces or niece and their or her issue to be administered by my trustees subject to the same conditions and declarations as are directed in the case of their or her original share. (3) Thereafter the said three nieces each received the income from a one-third share of the residue of the testatrix's estate. The said Agnes Margaret Osborne (whose full name was Mrs Agnes Margaret Durie or Osborne and who is referred to herein as Mrs Osborne) died without issue on 10th March 1958, domiciled in either Southern Rhodesia or South Africa. She was survived by her husband Francis Dobson Osborne. Mrs Osborne left a will dated 4th October 1922, and relative codicil dated 28th December 1943 which are printed in the appendix hereto and held to form part of this case. (4) In said will Mrs Osborne provided, inter alia,as follows : (II) In the event of my dying leaving no children me surviving : I give and bequeath all my estate and effects of which I shall die possessed moveable and immoveable nothing excepted and including both my said Rhodesian assets and my said interests and rights in the funds dealt with by the aforesaid deed of conveyance in trust unto my said husband Frank Dobson Osborne absolutely. (5) The deed of conveyance in trust referred to in the said will was dated 11th September 1922 and registered in the Books of Council and Session on 18th December 1922. It was executed by Mrs Osborne, then Miss Agnes Margaret Durie, in contemplation of her marriage. She was then domiciled in Scotland. The said deed of conveyance in trust is printed in the appendix hereto and held to form part of this case. (6) By said deed of conveyance in trust, Mrs Osborne conveyed to trustees for purposes therein mentioned (in the first place) her interest under certain wills (which are specified) and (in the second place) the whole means and estate real and personal then belonging to or vested in her or which she might acquire or succeed to during the subsistence of her intended marriage to the said Francis Dobson Osborne. The fourth purpose of said deed of conveyance in trust was in the following terms : (Fourth) in the event of there being no child or children of the said intended marriage or issue of such child or children then surviving the trustees shall upon the dissolution of the said marriage by the death of either me or the said Francis Dobson Osborne pay and transfer over to me should I be the survivor the whole capital of the funds and estate under their charge or should I be the predeceaser then subject to any liferent right I may have conferred upon my said husband I direct them to pay and transfer the said capital to such person or persons as I may direct by any will or testamentary writing executed by me and failing any such direction them (sic) to my heirs and representatives at the time of my decease according to the law of Scotland. (7) The first parties are the trustees presently acting under the testatrix's said trust-disposition and settlement. The second party is the surviving spouse of the said Mrs Osborne. The third parties are the two surviving nieces of the testatrix who each received a liferent of a one-third share of the residue of the testatrix's estate under the provisions of the said trust-disposition and settlement. (8) A question has now arisen as to whether the will of Mrs Osborne constitutes a valid exercise of the power of appointment of the capital of the one-third share of the residue of the testatrix's estate liferented by her, conferred on her in purpose (Fifth) of the said trust-disposition and settlement. (9) The parties hereto are agreed that the laws of South Africa and Southern Rhodesia (which are identical on this matter) the exercise of a power of appointment requires some reference, whether express or by implication, to the power or the property to which it relates. A power of appointment is not held to be exercised by a general residuary bequest."
The contentions of the parties were stated as follows :
"The first parties submit no contention.
"The second party contends that on a proper construction of the trust-disposition and settlement of the testatrix, the power conferred upon Mrs Osborne included power to appoint to the said share of residue by a general testamentary settlement. The said will was accordingly a valid exercise of the power. He further contends that the said deed of conveyance in trust was a testamentary writing; and in any event that it falls to be construed according to the law of Scotland. So construed, the terms used in the second place therein are such as to include the said share of the residue of the testatrix's estate. In these circumstances, the power of appointment was validly exercised by Mrs Osborne by her will and the reference therein to the said deed of conveyance in trust; and that whether the effect of the said will as an exercise of the power falls to be considered according to the law of Scotland (as he contends) or according to the law of South Africa or of Southern Rhodesia.
"The third parties contend (a) that on a proper construction of the trust-disposition and settlement of the testatrix the power of appointment conferred on Mrs Osborne in purpose (Fifth) thereof did not include power to appoint to the said share of residue by a general testamentary settlement, (b) that the question as to whether or not the said power of appointment has been validly exercised by said will falls to be determined according to the law of South Africa or of Southern Rhodesia and (c) that, so determined, the said will does not constitute a valid exercise of the power of appointment. They further contend that the said deed of conveyance in trust is not a valid testamentary writing and that, in any event, the terms used in the second place therein are not such as to include the said share of the residue of the testatrix's estate. Accordingly the said will, including the reference therein to the said deed of conveyance in trust, does not constitute a valid exercise in favour of the second party of the power of appointment conferred on Mrs Osborne in purpose (Fifth) of the said trust-disposition and settlement.
The question of law was :"Does the will of the said Mrs Agnes Margaret Durie or Osborne constitute a valid...
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