Rollo's Trustees v Rollo
| Jurisdiction | Scotland |
| Judgment Date | 26 July 1940 |
| Docket Number | No. 52. |
| Date | 26 July 1940 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Keith.
SuccessionContractContract to execute willRefusal to executeAction for specific implement of contract.
By a deed of provision and appointment a truster directed that a capital sum should be held by his trustees for payment of the income to his third daughter during her lifetime as an alimentary allowance, and on her death for payment of the capital to her issue and, failing issue, to such person or persons as she might by will direct, and, failing such direction, equally among all his younger children then alive and the issue of any of them who might have predeceased her. The daughter by an agreement between her brother and herself, by which they transferred certain funds to trustees, undertook to exercise in favour of these trustees the power of disposal of the funds held for her liferent under the deed of provision and appointment, and forthwith to execute and leave a will giving effect to the undertaking thereby granted.
The daughter not having executed a will, the trustees under the agreement brought an action against her concluding for a decree ordaining her to execute and deliver a will containing a valid exercise in their favour of the power of disposal. At the date of the action the daughter was aged 69 and was unmarried.
Held that, as the persons entitled to the funds in the event of the power not being exercised could not be ascertained until the daughter's death and could not be represented in this action, decree of specific implement should not be granted.
Upon the question whether in an appropriate case the Court could order specific implement of an undertaking to execute a will, opinions reserved by the Lord President and Lord Moncrieff; opinionin the negative by Lord Mackay.
Commander Robert Rollo Gore-Browne-Henderson, Royal Navy, Bilbster, Wick, and other, the trustees acting under an agreement and deed of trust between the Honourable Bernard Francis Rollo of Keltie Castle, Dunning, and the Honourable Cecily Agatha Agnes Rollo, Inverdunning House, Dunning, dated 13th March 1930, brought an action against the above designed Honourable Cecily Agatha Agnes Rollo, concluding, inter alia, "2. For decree ordaining the defender to execute and deliver to the pursuers, within fourteen days of the date of the said decree, a will containing a valid exercise in favour of the pursuers" of a power of disposal of the funds liferented by her under a deed of provision and appointment by the Right Honourable John Rogerson Rollo, Lord Rollo and Dunning, her father, dated 2nd September 1911 and registered in the Books of Council and Session 4th July 1918.
By the sixth purpose of this deed of provision and appointment the sum of 10,200 was placed in trust for payment of the income to the defender during her life as an alimentary allowance, and upon her death "for payment of the principal sum to her issue equally among them per stirpes and failing issue to such person or persons as she may by will direct and failing such direction the same fall to and be divided equally among all my younger children then alive and the issue of any of them who may have predeceased (the defender)equally per stirpes."
By the third clause of the agreement and deed of trust referred to in the summons the defender undertook to exercise in favour of the trustees thereby appointed the power of disposal of the funds held for the liferent conferred on her by the deed of provision and appointment, and "forthwith to execute and leave a will giving effect to the undertaking hereby granted."
The pursuers, inter alia, narrated these provisions, and averred that the defender had been repeatedly called upon to implement the obligations undertaken by her, but that she refused to do so.
At the date of the action the defender was aged 69 and was unmarried.
The pursuers pleaded:"The defender, having undertaken under and by virtue of the said agreement and deed of trust to exercise the power of disposal of the said funds as condescended upon, is bound to implement her said undertaking, and decree should be pronounced in terms of the conclusions of the summons."
The defender pleaded, inter alia:"(1) The action as laid, being incompetent quoad the second conclusions, should be dismissed pro tanto. (2) The averments of the pursuers being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed." The defender in pleas (3) and (4) pleaded alternatively that she was not now bound to fulfil the obligation, or that, in any event, the pursuers' predecessors had already been satisfied that the obligation had been implemented.
The case was heard in the procedure roll, and on 12th April 1940 the Lord Ordinary (Keith) repelled the third and fourth pleas in law for the defender, sustained her first and second pleas in law, and dismissed the action.
At advising on 26th July 1940,
LORD MONCRIEFF.The circumstances attending the single question which is still raised for decision by this reclaiming motion are set forth by the Lord Ordinary at the outset of his opinion. That question is whether the defender and respondent ought to be ordained by decree as concluded for to execute in favour of the pursuers, in terms of the agreement of 13th March 1930, a will operating an exercise of the power over his estate which was conferred upon the defender by her deceased father in the sixth purpose of the deed of provision and appointment executed by him on 2nd September 1911. It is clear, even upon its formulation, that such a question may raise considerations...
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