Scottish Court of Session Decisions

By deed of trust dated 30th January and 17th February 1841, and registered 15th March 1860, Lieutenant-Colonel John Fordyce, late of Ayton, placed the sum of £28,000 in the hands of certain trustees for behoof of his seven sisters. By the first purpose of the trust one-fourth of the free revenue of the foresaid sum was directed to be paid to such of them as should remain unmarried, for household expenses. By the second purpose the remaining three-fourths was directed to be paid to his whole sisters married and unmarried in life for the time being, equally among them during their respective lifetimes; and it was declared “that in estimating or applying the said three-fourths of the free revenue, allowance shall always be made for such part or parts of the said capital sum of £28,000 as may revert to me or my representatives in any of the events hereinafter mentioned.” The third purpose was—“Such of my sisters as shall marry shall each of them individually have power, at any time during her or their lifetimes, to bequeath to or settle upon her or their child or children surviving the granter or granters of such bequest, or any of them, in such manner as she or they may think fit, the sum of £4000 sterling (part of the above capital sum of £28,000).” … The fourth purpose of the trust provided—“Upon the decease of any one or more of my sisters above named, whether unmarried at the time or being married without leaving a child or children, or in case the child or children in whose favour such bequest or settlement shall have been made as aforesaid shall die before attaining majority, then and in every such event the principal sum of £4000, part of the said capital sum of £28,000, shall revert and be payable by the said trustees to me or my executors or assignees on my or their giving security to their satisfaction for the regular payment to them, the said trustees, of one-fourth part of the interest thereof for the benefit of my surviving unmarried sister or sisters.” . . The trustees appointed under this deed were all resident in Scotland, and in a subsequent part of the deed they were empowered and directed “to lay out or invest the foresaid sum of £28,000 sterling, either in whole or in such portions as they may think proper, on the security of lands or heritages in Scotland, or in the purchase of Government stock, or to place any part of the capital sum which they may not think it expedient thus to invest in one of the chartered banks of Scotland.”

Only one of the sisters was married, viz., Catherine Elfrida, who was married on 21st June 1843 to Dr George Kennion of Harrogate, a domiciled Englishman. She died on 8th July 1878 a domiciled Englishwoman, and predeceased by her husband. She left three children, two sons and one daughter, wife of the Rev. E. A. Dury of Wigan. The daughter died before the presenting of this case, but her marriage-contract trustees and her husband, together with Mrs Kennion's two sons, were the second parties to it.

Lieutenant-Colonel John Fordyce, the granter of the deed of trust above mentioned, died in 1851, survived by all his sisters, and leaving a settlement by which he conveyed his whole estate, heritable and moveable, to his brother George William Fordyce Buchan, who died in 1871, leaving his whole estate to trustees, who were the third parties to the case. Colonel Fordyce's trustees were the first parties.

The question related to the disposal by Mrs Kennion of the £4000 which she had power under Colonel Fordyce's trust-deed to settle on her children. By deed of appointment, executed 28th July 1865, in contemplation of the marriage of her daughter, Mrs Kennion, in virtue of the power conferred on her by her brother's deed of trust, appointed that if her daughter should survive her, a sum of £1000, part of the sum of £3000, being three-fourth parts of the share of the £28,000, should belong to her daughter absolutely, and should be paid to her after her own death. This sum of £1000 Mrs Dury assigned to her marriage-contract trustees. In the deed of appointment the deed of trust of Lieutenant-Colonel Fordyce was erroneously referred to as dated 18th January 1841, whereas it was executed on 30th January and 17th February 1841, and registered in the Books of Council and Session on 15th March 1860. Further, Mrs Kennion left a holograph will dated “St Paul's Vicarage, Hull, 1876,” which so far as material was in these terms—“I wish to prevent any uncertainty of how the money which was left to me, as stated in my brother John's will, is to be disposed of. I write the following few lines to guide those who may take the management of my affairs after my death, having the disposal of the sum of £4000 for the benefit of my children as I may see fit to do. Of this £4000 I leave £1000 to Wyndham—George Wyndham Kennion one thousand; to Thomas Robert Kennion £3000, three thousand.” The “Wyndham” and George Wyndham Kennion here referred to were the same person. The reference made to Colonel Fordyce's “will” was erroneous, as no power was given to Mrs Kennion under that instrument, nor was anything left to her under it.

It was assumed by all the parties that this will was invalid by the law of England, Mrs Kennion's domicile. The family of Mrs Kennion maintained that by the deed of appointment in contemplation of her daughter's marriage, and by the will of Mrs Kennion, which was sufficient according to the law of Scotland, the place where the power was given by the deed of Colonel Fordyce, Mrs Kennion had validly appointed the sum of £4000 among her children. Further, they maintained that even if the will of Mrs Kennion were to be disregarded, the £3000 left unappropriated by the deed of 1865, executed in contemplation of Mrs Dury's marriage, fell to be divided equally among the children of Mrs Kennion.

The trustees of G. W. F. Buchan contended that neither the deed of appointment of 1865, which proceeded on a mis-recital, nor the will of Mrs Kennion, which was not valid by the law of England, was a valid appointment, and that, the power of appointment not having been exercised, the £1000 reverted to the estate of Colonel Fordyce, of which they were now in right.

The following questions were submitted to the

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Court—“(1) Is the deed of appointment by Mrs Kennion of 1865 a valid exercise of the power conferred on Mrs Kennion by the said deed of trust, notwithstanding the erroneous recital in it of the date of the said deed of trust? (2) Is the holograph document by Mrs Kennion, and endorsed by her ‘My last will—C. E. Kennion,’ a valid exercise of the power conferred on her by the said deed of trust by Lieutenant-Colonel John Fordyce? (3) In the event of either or both of the foregoing questions being answered in the negative, are the trustees of the late George William Fordyce Buchan entitled to the reversion of the sum of £4000 provided to Mrs Kennion by the said deed, or to the reversion of the unappointed part thereof? Or does the said sum, so far as unappointed, fall to the parties of the second part as the children of Mrs Kennion?”

Argued for First and Third Parties—In the special circumstances of the case the falsa demonstratio in the deed of 1865 rendered it null. The holograph document left by Mrs Kennion was invalid as a will by the Law of England, which was the law both of the domicile and of the place. Whether as will or as appointment, the deed was null. It was not a gift to children with power of appointment in their parent. It was an express condition of their taking at all that the parent should “bequeath or settle” the sum in their favour. The words “bequeath or settle” referred to valid mortis causa deeds.

Argued for Second Parties—The law of the domicile could not apply, because this was not part of the personal estate of Mrs Kennion. The authorities showed that the form of the deed exercising the power was to be regulated by the deed confirming the power, because the property was conveyed by virtue not of the appointment but by the act of the donor of the power. The power to appoint was given for the benefit of the children, and if there was no appointment the fund fell to be divided equally.

Authorities—( Scotch)— Taylor v. Scott, July 16, 1847, 9 D. 1504; Corbet v. Waddell, Nov. 14, 1879, 17 Scot. Law Rep. 106. ( English) Crookenden v. Fuller, Nov. 4, 1859, 29 L.J. (Prob.) 1; Alexander, Feb. 15, 1860, 29 L.J. (Prob.) 93; Hallyburton, Feb. 13, 1866, 1 L.R., P. & D. 90; Butler v. Gray, Nov. 15, 1869, 5 L.R., Ch. 26; Tatnall v. Hankey, 2 Moore's P. C. App. 342.