Walker v Amey
| Jurisdiction | Scotland |
| Judgment Date | 11 January 1906 |
| Date | 11 January 1906 |
| Docket Number | No. 56. |
| Court | Court of Session |
Lord Dundas, Lord Justice-Clerk, Lord Kyllachy, Lord Stormonth-Darling, Lord Low.
Trust—Inter Vivos Disposition—Power to Revoke—Jus Relicti.—
In 1903 Mrs W. executed an inter vivos trust-disposition by which—on the narrative that, owing to the delicate state of her health, and in order to make provision for herself in the case of continued illness or incapacity, she had resolved to make the following disposition of the principal sum after mentioned, for her own benefit in the first place, and for those persons thereinafter mentioned, after her death, in the second place—she conveyed to trustees the sum of £700 for behoof of herself in liferent, and on her death for certain persons named in the deed in fee. Power was given to the trustees, at their own absolute discretion, to apply any part of the principal sum for the maintenance of the truster during her life. The deed was declared to be irrevocable. Of even date with this deed, Mrs W. executed a testamentary settlement of the whole personal estate which should belong to her at the time of her death. The inter vivos trust-disposition was delivered to the trustees, together with the sum of £700, which was invested and administered by them in terms of the trust.
After the death of the truster in 1904, in a question between the beneficiaries under the inter vivos trust-disposition and the truster's husband, who claimed one-half of the sum thereby conveyed in name of jus relicti, on the ground that the trust-disposition was merely administrative and testamentary and was revocable, held (aff. judgment of Lord Dundas) that the trust-disposition was irrevocable, and effectually divested the truster of the sum conveyed.
On 18th December 1903 Mrs Margaret Amey or Walker, who resided at Hawick, and was the wife of David Walker, from whom she was living apart, executed an inter vivos trust-disposition in the following terms:—‘I, Mrs Margaret Amey or Walker, presently residing in Hawick, carrying on business there as a tobacconist, and wife of David Walker, millwright, sometime residing in Leith, considering that, owing to the delicate state of my health at present, and in order to make provision for myself in the event of continued illness or incapacity, I have resolved to make the following disposition of the principal sum after mentioned, for my own benefit in the first place, and for those persons hereinafter named after my death in the second place: Therefore I declare that I have instantly given and made over, as I do hereby give and make over, to John Oliver, solicitor, residing at Lynnwood, Hawick, and John Smith, residing at No. 2 Wellogate Place, Hawick, and to the survivor of them, and to such other person or persons as they or the survivor of them shall assume to act in the trust hereby created, and to the survivors and survivor of the persons hereby named or assumed as aforesaid, as trustees, for the purposes after mentioned (the said trustees named and assumed as aforesaid being throughout these presents denominated “my trustees”), and to the assignees of my trustees, the principal sum of £700 sterling, being money earned by me in the business in which I am engaged: But declaring always that these presents are granted by me in trust only for the purposes following, videlicet—(First), That my trustees shall, with all convenient speed, invest the said sum in accordance with the powers hereinafter conferred upon them, and shall pay the annual interest and income arising therefrom to myself during all the days of my life, at such times and terms as to them shall seem convenient and proper; (Second) That my trustees shall have power at any time during my lifetime, if they, in their own absolute discretion, shall deem it advisable for my benefit, being in no way bound, to apply any part of the said principal sum, or the whole thereof if necessary, for my maintenance and behoof; and (Third), That my trustees shall, as soon after my death as possible, realise and convert into money the stocks, shares, or securities upon which the said principal sum, or such part thereof, if any, as shall then be extant, and shall from the proceeds thereof pay to Mary Amey Laing or Looz, residing at 21 Dean Street, Edinburgh, my niece, the sum of £25 sterling, and to Violet Looz, step-daughter of my said niece, the sum of £25 sterling, and shall divide and pay the remainder of said proceeds, if any, after deducting expenses of realisation and division and all other necessary outgoings, amongst and to the following persons in equal shares, videlicet, to Margaret Reid or Amey, my mother, if she shall survive me, one share; to John Amey, residing in Edinburgh, my brother, one share; to Mary Amey or Laing, wife of William Laing, residing in Glasgow, my sister, one share; and to Isabella Amey or Murdoch, my sister, in Australia, one share; declaring always, that in the event of my said brother or either of my said sisters predeceasing me, the share of the predeceaser shall be paid to his or her lawful issue then in life, in equal shares; and failing such issue, then and in that case the same shall accresce and belong to the survivors or survivor of my said brother and sisters, or their respective issue, equally, per stirpes.’ The deed then conferred powers of sale, investment, &c. on the trustees, and concluded—‘And I further hereby declare that these presents shall not be revocable by me upon any ground whatever; and I consent to registration for preservation.—In witness whereof,’ &c.
The deed was delivered to the...
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