Gemmell's Trustees v Shields
| Jurisdiction | Scotland |
| Judgment Date | 29 May 1936 |
| Docket Number | No. 58. |
| Date | 29 May 1936 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
SuccessionFaculties and PowersPower of appointmentWhether exercised by general settlementWhether exercise validLiferentrix empowered to divide liferented share among issue in such shares or proportions as she might directGeneral settlement not specifically mentioning power but conveying any estate over which she had power of disposal to trustees for behoof of issueInterest of her daughters restricted to liferent.
A testator directed his trustees to hold a share of his residue for a married daughter in liferent and her issue in fee, the daughter being given "power to divide her share among her issue in such shares or proportions as she may direct by any deed or writing under her hand containing special directions thereanent."
The testator was survived by his daughter, who, by her settlement, conveyed to trustees her whole means and estate including "any estate over which I may have power of disposal or appointment." After providing for certain prior purposes, she directed her trustees to allow her husband (if he survived her) the liferent of her residue, and thereafter to divide her residue amongst her children and their issue equally per stirpes, the interest of her daughters, however, being restricted to a liferent.
The daughter having died predeceased by her husband, a special case was brought to determine whether her settlement constituted a valid exercise of the power of appointment conferred on her by her father's settlement.
Held that the daughter had exercised the power conferred on her, notwithstanding that her directions were addressed only to her own and not to her father's trustees and that they contained no specific mention of the power in question; and, further, that her exercise of the power was valid even though it restricted the interest of her daughters to a liferent.
SuccessionFaculties and PowersPower of appointmentLimited powerExercise by general settlementWhether presumption of exercise same as in case of general power.
Observed, per Lord Moncrieff: "I think it may now be regarded as settled law that, unless the maker of a power imposes conditions to restrict the exercise of the power, a general testamentary settlement will hereafter be interpreted, unless it contains an indication to the contrary, as operating an exercise even of a limited power of appointment."
Opinion of Lord President Normand in Burns's Trustees v. Burns's Trustees, 1935 S. C. 905, to the same effect approvedby Lord Fleming.
James Gemmell, coalmaster, Slamannan, died on 1st June 1897 leaving a trust-disposition and settlement, dated 4th August 1893, by which he disponed to his trustees his whole means and estate, heritable and moveable, in trust for the purposes therein directed.
By his trust-disposition and settlement the testator directed, inter alia:"(Fourth) My trustees shall as soon as convenient after my decease and after implement of the foregoing purposes of the trust divide the residue of my estate into three just and equal shares and shall pay or account for one share to John Gemmell, my son, or his heirs and shall hold and stand possessed of the remaining two shares for behoof of Agnes Gemmell or Shields and Jane Park Gemmell my daughters equally between them in liferent for their respective liferent alimentary use allenarly and for behoof of the issue respectively of my said daughters in fee each of them having power to divide her share among her issue in such shares or proportions as she may direct by any deed or writing under her hand containing special directions thereanent, failing such directions the share of each of my daughters shall fall to her respective issue equally among them Failing any of my children without leaving lawful issue his or her share shall go to increase the share of the survivors and shall be held and treated by my trustees in all respects as is above provided in regard to the original share. "
The testator's daughter, Mrs Shields, died on 3rd August 1933, predeceased by her husband. She left a trust-disposition and settlement, dated 2nd April 1927, and relative codicil, dated 6th June 1927.
By her trust-disposition and settlement Mrs Shields conveyed to her trustees for the purposes therein mentioned "all means and estate, heritable and moveable, real and personal of whatever kind and wherever situated which shall belong or be owing to me at the time of my death including any means and estate held by me under special destination or over which I may have power of disposal or appointment together with the writings and securities thereof and the income produce and profits."
By the third purpose of her trust-disposition and settlement Mrs Shields directed that, in the event of her husband surviving her, her trustees should allow him the liferent of the whole free residue of her means and estate. By the fourth purpose she directed that, on her husband's death should he have survived her or on her own death should he have predeceased (the date of whichever of these events should occur being thereinafter referred to as the date of division), her trustees should divide the residue into such number of shares as should be equal to the number...
To continue reading
Request your trial
-
Angus's Trustees v Monies
...Beav. 25; MacEwan's Trustees v. MacEwan, 1917 S. C. 50; Moubray's Trustees v. Moubray, 1929 S. C. 254; Gemmell's Trustees v. ShieldsSC, 1936 S. C. 717; Sugden on Powers, (8th ed.) p. 681; Farwell on Powers, (3rd ed.) pp. 333-335; Slark v. DakynsELR, (1874) L. R., 10 Ch. 2 3 F. 369. 3 8 F. 1......
-
Durie's Trustees v Osborne
...In re Waite's Settlement Trust, [1958] Ch. 100. 1 Bray v. Bruce's ExecutorsUNKSC, (1906) 8 F. 1078. 2 Gemmell's Trustees v. ShielsSC, 1936 S. C. 717. 3 M'Tavish's Trustees v. Ogston's Executors, (1903) 5 E. 4 Campbell's Trustees v. CampbellUNK, (1903) 5 F. 366. 5 Nicol's Trustees v. Earquha......
-
Burns's Trustees v McKenna
...absolutely to such person. " 2 11 and 12 Geo. V, cap. 58. 3 Ramsay's Trustees v. Ramsay, 1909 S. C. 628; Gemmell's Trustees v. Shields, 1936 S. C. 717, Lord Monerieff at p. 725; Sturges v. Beresford, [1938] 3 All E. R. 566, Morton, J., at p. 569. 4 (1906) 8 F. 1078. 5 1939 S. C. 509. 6 1939......
-
Robertson's Trustees v Smith's Trustees
...p. 170 3 Burns's Trustees v. Burns's TrusteesSC, 1935 S. C. 905, Lord President (Normand) at p. 911; Gemmell's Trustees v. ShieldsSC, 1936 S. C. 717, Lord President (Normand) at p. 724 4 (1840) 3 D. 31 5 37 and 38 Vict. cap. 37, sec. 1 6 M'Laren on Wills and Succession, (3rd ed.) vol ii, p.......