Muir or Williams v Muir

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Thankerton,Lord Macmillan,Lord Wright,Lord Romer,Lord Clauson
Judgment Date16 April 1943
Judgment citation (vLex)[1943] UKHL J0416-3
Docket NumberNo. 4.
Date16 April 1943

[1943] UKHL J0416-3

House of Lords

Lord Thankerton

Lord Macmillan

Lord Wright

Lord Romer

Lord Clauson

Muir or Williams
and
Muir and Others.

After hearing Counsel, as well on Tuesday the 9th as on Thursday the 11th and Friday the 12th days of February last, upon the Petition and Appeal of (First) Mrs. Gillian Rachel Muir or Williams, residing at Lynes House, Bishops Cannings, Devizes, Wiltshire and (Second) the said Mrs. Gillian Rachel Muir or Williams, as Executrix of her brother, the late Ian Kay Muir, who resided at Lynes House aforesaid, acting under his Will, dated 18th May 1940, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 29th of October 1941, so far as regards the words "answer the first question of law in the negative, find it unnecessary to answer the second question, and find, declare and decern accordingly;" might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of (First) Sir Alexander Kay Muir, Baronet, James Finlay Muir, and John Buchanan Muir; (Second) the said Sir Alexander Kay Muir, the said James Finlay Muir, John Harling Muir, Fiona Mary Muir, Richard James Kay Muir, Ian Charles Muir, Mrs. Margaret Vivian Muir or Hayes, David Richard Hayes, Paymaster Lieutenant Gerald Robin Muir, R.N., Sarah Nadejda Muir, the said John Buchanan Muir, Diana Heather Muir, Bettine Clara Muir, Mrs. Elizabeth Brown Muir or Moncreiffe, Rupert Ian Kay Moncreiffe, Miss Catherine Elizabeth Moncreiffe, Sir David Gerald Moncreiffe of Moncreiffe, Baronet, Alexander Muir M'Grigor, Monica Margaret M'Grigor, Alexander Kenneth M'Grigor, Peter Muir M'Grigor, Mrs. Margaret Jean Mona M'Grigor or Studd, Rachel Ann Studd, Heather Marion Studd, Mrs. Catherine Hetherington Muir or Pollen, Mrs. Margaret Edith Pamela Pollen or Burrell, Peter Timothy Burrell, Merrik Kay Burrell, Stephen Derek Hungerford Pollen, Barbara Heather Muir Pollen, Thomas Heywood Coats, Jane Agnes Coats, William David Coats, Mark Alastair Coats, Vernon William Coats, April Bunten Coats, James Turner, Edward Osmond Thornhill Simpson, Edward Charles Peake, Mrs. Charlotte Escudier Turner or Muir, John David Gatheral, William Henry Goddard, John Ferrier Turing, Frederick Archibald Hugo Pitman, and Charles Julius Hirst, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 29th day of October 1941, so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a Direction to answer both the questions of law in the Special Case in the Affirmative and to do therein as shall be just and consistent with this Judgment: and it is further Ordered, That (by consent) the costs of all parties in respect of the said Appeal to this House, be taxed as between Solicitor and Client and paid out of the share of the Testator's Estate referred to in paragraph 9 of the Special Case, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Thankerton

My Lords,

1

Sir John Muir of Deanston, to whom I will refer as the testator, died on 6th August, 1903, leaving a trust disposition and settlement, dated 10th March, 1902, by which he assigned and disponed to the trustees therein designed his whole estate heritable and moveable, real and personal, but in trust always for the purposes thereinafter set forth. For the purpose of this Appeal it will be sufficient to refer to the purposes relating to the disposal of his residuary estate. By the ninth purpose the testator provided for the division of the residue and remainder of his means and estate among his children in such proportions as to give to his son who should succeed to his baronetcy twice as much as to his other sons, and to his other sons twice as much as to his daughters. By the tenth purpose the testator provided as regards the sons' shares of residue that one-half of their respective shares was to be paid over to the sons who had attained the age of twenty-five years at the time of his death and to the other sons on their attainment of that age with provision as to the failure of any son to survive the date of payment. The provisions as to this half of the sons' shares are not material. The question in the Appeal concerns the other half of the sons' shares, as to which the material provisions of the tenth purpose are as follows:—

"And I direct my trustees (subject to the right of my trustees to exercise the powers hereinafter conferred on them) to set apart hold and invest the other half of the shares of my sons in their own names as trustees foresaid for behoof of my sons respectively in liferent for their liferent alimentary use only and for payment of the annual income or interest to such sons and for behoof of the lawful children or remoter issue of my sons in such shares and proportions and subject to such conditions and limitations (including the restriction of the share of any of his children or remoter issue to a liferent) as my sons may respectively appoint and failing such appointment equally among such children or remoter issue and the survivors and survivor of them per stirpes share and share alike in fee."

2

The Testator was survived by his wife, who died in 1929, and four sons and four daughters. We are alone concerned with the youngest son, Matthew William Muir, who had attained the age of twenty-five years at the time of the testator's death. The trustees accordingly paid him one-half of his share of residue, and invested the other half and paid the income to him in satisfaction of his alimentary liferent until his death on 9th February, 1922.

3

Matthew William Muir was survived by two children, Mrs. Gillian Rachel Muir or Williams, who was born in 1914, and married in 1940, and Ian Kay Muir, who was born in 1916, and was killed in action in 1940, unmarried. Mrs. Williams is the present Appellant, as an individual and as executrix of her brother.

4

Matthew William Muir left a trust disposition and settlement dated 5th February, 1915, in which he exercised the power of appointment conferred on him by the testator, his father, as follows:—

"Moreover in exercise of the powers conferred on me by the trust disposition and settlement of my father the said Sir John Muir … I do hereby direct and appoint the trustees at the time acting thereunder upon my death to hold, apply, pay and convey the one-half liferented by me of my share in my father's estate among my children jointly with the issue per stirpes of any of them who may die leaving issue in such proportions that the share of a son or his issue shall be double that of a daughter or her issue: and I provide and declare that the shares of my children, sons and daughters alike, shall be held for them in alimentary liferent only and for their children and remoter issue per stirpes in fee on the same terms and conditions in every respect so far as applicable as are hereinbefore provided by me with reference to my daughters' shares of my own estate. . . ."

5

This incorporation of the terms and conditions in reference to his daughters' shares of his own estate appears to be an ineffective attempt to delegate his own power of appointment, and may be disregarded.

6

The Appellant having attained full age in 1935, and Ian Kay Muir having attained that age in 1937, a question has arisen whether by virtue of section 9 of the Trusts (Scotland) Act, 1921, the share of the residuary estate of the testator held for their behoof respectively in liferent belonged absolutely to them respectively, thereby entitling the Appellant, in her own right and as executrix of her brother, to have the share, which consists of moveable estate, made over to her by the testator's trustees. A special case was adjusted by the parties interested and was heard by the Second Division of the Court of Session, which, on 29th October, 1941, pronounced the interlocutor now under Appeal. The trustees of the testator were the first parties to the case; the Appellant as an individual was the second party, and, as executrix of Ian Kay Muir, was the third party; the fourth parties are the whole persons who, apart from the second and third parties' claim, are at present interested in the fee of the estate claimed under the Act of 1921. The Second Division negatived the claim of the second and third parties to the fee of the share held for behoof of the Appellant and her brother in liferent.

7

The law against perpetuities in Scotland is entirely of statutory origin, the earliest provision being contained in the Entail Amendment Act, 1848, sections 47 and 48, which related only to heritage. Provision relating to moveable and personal estate on lines analogous to section 48 of the above Act, was made by section 17 of the Entail Amendment Act, 1868. This section was repealed by, and re-enacted as section 9 of, the Trusts (Scotland) Act, 1921, which provides as follows:—

"9. It shall be competent to constitute...

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