Scottish Court of Session Decisions

This Special Case was brought in the following circumstances:—The late John Gillanders, heir of entail in possession of Highfield, and also proprietor of certain lands in fee-simple, all situated in the counties of Ross and Aberdeen, executed, on 26th November 1824, a general trust-disposition and settlement. By this deed Mr Gillanders conveyed to trustees his whole means and estate with the exception of all lands in the counties of Ross and Aberdeen then belonging to him under the fetters of entail, or in fee-simple. After directing payment to be made of his debts, &c., and of an annuity to his wife under their contract of marriage, dated 28th November 1801, and on the narrative, inter alia, that by the said marriage-contract, in virtue of powers under the deed of entail of Highfield, the truster had provided his younger children, if more than one, in the sum of £800, payable at their majorities or marriages, subject to a power of division, and failing division, equally among them, and had further bound himself and his heirs and successors to make payment to his said younger children of the additional sum of £1500 out of funds under the said marriage-contract, payable and divisible as aforesaid, and that in lieu of these provisions he granted the following provisions—the truster directed his trustees at the first Whitsunday or Martinmas after his death, either to stock out or appropriate out of the trust-funds invested at the date of the trust coming into operation, a sum of £2000, whereof the interest was to be paid half-yearly to the truster's daughter, the said now deceased Margaret Mackenzie Gillanders (named in the said general trust-disposition Margaret Gillanders), so long as she should remain unmarried; and in the event of her marriage, the trustees and their foresaids were appointed to lay out the said sum of £2000 on good security, to be taken in favour of the truster's said daughter Margaret in liferent, excluding her husband's jus mariti, and the lawful issue of her body in fee, but under the declaration that should she die unmarried or if married, without leaving lawful issue, that then and in that case, and in either event, she should have full power to dispose by settlement of any part of the said principal sum not exceeding £1000 sterling to and in favour of such person or persons, or for such purpose or purposes as she might think fit, it being expressly provided and declared that the remaining part of the said provision, and the whole of the provision in case the trustee's said daughter Margaret should not have disposed of any part thereof by settlement as aforesaid, should fall and revert to the said trustees and their foresaids, and be applied by them as after specified in the said trust-disposition.

After making a similar provision in favour of his other daughter Catherine Gillanders the truster declared that the said provisions in favour of his said daughters Margaret and Catherine, were in lieu and full satisfaction to them of their shares of said sums of £800 and £1500, all right to which they, by acceptance of the said provision under his trust deed, renounced and for ever discharged.

After all the purposes of the trust were accomplished and fulfilled, the truster directed his trustees to apply the residue of the trust estate in the payment and discharge of all debts affecting the said entailed estate of Highfield at or prior to the truster's disease, should any then exist, and on that being effected, to pay over the balance, if any, to the heir of entail in possession of the said estate for the time, provided he was also the truster's heir of line; but if the heir of entail of Highfield was

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not the truster's heir of line, then the trustees were appointed to pay such balance, if any, to the truster's heir of line then in existence, though not in possession of the said entailed estate of Highfield.

By the said trust-disposition it was further declared that the whole provisions therein conceived in favour of the truster's daughters should be accepted of by them, and were in full, not only of the provisions stipulated in their favour by the said marriage-contract, and under the said deed of entail, but also in full of all legitim, portion natural, bairns' part of gear, executry, or others whatsoever, which they could ask or demand by and through his decease, or by and through the decease of their mother, or in any other manner of way whatsoever.

The truster died on 2d May 1831, survived by his daughters Margaret and Catherine; and the persons nominated by him as trustees accepted and entered on the administration of the trust committed to them.

The said Margaret Mackenzie Gillanders, who was never married, accepted the provision in her favour under the truster's settlement in lieu and satisfaction of the sums due her under her father's marriage-contract.

She died on 12th March 1873, leaving a last will and testament, executed by her on 10th March 1873, whereby she appointed her nephew George Gillanders to be her executor, and directed him to pay her whole just and lawful debts and funeral expenses, and appointed him to pay and divide the whole residue and remainder of the estate, after payment of the said debts and funeral expenses, and any legacies she might bequeath, to and among her nephews and nieces, and the lawful issue per stirpes of such as might have predeceased her, equally share and share alike; and also disponed to the said George Francis Gillanders in trust as aforesaid her whole heritable estate. The said last will and testament also contained two bequests of £500 each.

The said last will and testament did not contain any express reference to the power granted by the deed of settlement of Mr John Gillanders, her father, to dispose of any part of the said principal sum of £2000 not exceeding £1000.

The parties to this case were, first, the trustees of Mr John Gillanders of Highfield; second, James Falconer Gillanders, heir of entail in possession of Highfield, and heir of line of the said John Gillanders; third, George Francis Gillanders, executor of Miss Margaret Gillanders; and fourth, the children of Mrs Catherine Gillanders or Inglis.

The following questions were submitted for the opinion and judgment of the Court:—“(1) Whether the said sum of £2000, mentioned in Article 3, and interest thereof from the 12th March 1873, fall to be applied by the first parties hereto in payment and discharge of debts affecting the entailed estate of Highfield at or prior to the truster's decease, and the balance, if any, thereafter remaining, to be paid to the second party hereto; or, (2) Whether the said sum of £2000, and interest thereof from 12th March 1873, to the extent of the sum of £1000, and corresponding interest, fall to be paid over to the said George Francis Gillanders, as executor foresaid, to be applied by him in terms of the last will and testament of the said Margaret Mackenzie Gillanders.”

The second party argued—The power to dispose of a fund was not exercised by the mere nomination of an executor. The executor could only take up moveable estate, and it was impossible to say that this £1000 was part of Miss Margaret Gillanders’ moveable estate, for she had only a liferent right to the fund of which it was a part. Thus the power conferred upon Miss Margaret Gillanders was not specially exercised, and exercise of such a power was not to be presumed. Again, the circumstances of the case was against the presumption that Miss Gillanders intended to exercise the power, because, although her nephews and nieces were the favoured parties under her will, she had ample means to provide for them, and the person who benefited by the £1000 if she did not dispose of it was her only brother.

The third and fourth parties argued that the power of disposing of the £1000 was exercised by Miss Gillanders when she executed a will appointing an executor. It was settled that an express conveyance of the whole means and estate involved the exercise of a power to convey a fund, although that fund was not the property of the testator, and it was also settled that the mere nomination of an executor carried the whole personal estate of the testator. If, then, the mere nomination of an executor had this effect, why should it not also have the effect of exercising a power to dispose of a fund.

Authorities— Jardine v, Jardine, Jan. 22, 1850, 12 D. 504; Bradley v. Westcott, 1807; 13 Vesey 445; Mill v. Smith, Jan. 6, 1826, 4 S. 679: Hislop v. Maxwell, Feb. 11, 1834, 12 S. 413; Grierson, July 1852, 14 D. 959; Menzies’ Conveyancing, 422; White v. Findlay, 24 D. 47.

At advising—