Scottish Court of Session Decisions

Mr William Bowie and Annetta Antonia Louisa Thurburn were married in 1840. By an antenuptial contract of marriage Mr Bowie, inter alia, bound himself to provide by insurance on his own life, or otherwise the sum of £4000, and to take the rights and securities thereof to himself and his promised spouse and the survivor, in conjunct fee and liferent for her the said Annetta A. L. Thurburn's liferent use only, and to the children of the marriage and the issue of these children in fee. It was declared that it should be in the power of William Bowie to divide and apportion as he should think proper among the said children or their issue the above provision in their favour, and in case of his death without making any such division, his wife, if she survived him, was to have the same power. In case such power was not exercised by either, the sum was to be equally divided among the children of the marriage. It was also declared that the said provision in favour of the children should be in full satisfaction to them of all bairns' part of gear or legitim.

By mutual disposition and settlement, dated 9th May 1849 and registered 13th March 1857, Mr and Mrs Bowie, on the narrative of the fore-gaid antenuptial contract of marriage and obligation above mentioned, and that the said William Bowie had effected two policies of insurance on his life, amounting together to £3000, assigned the same to his said wife in liferent in the event of her surviving him, and to the child or children of the marriage who might be alive at the time, in such proportions as he might direct by any writing under his hand; or failing his leaving such writing, then his said wife should have the power of making such apportionment, and failing either of them leaving such writing, then the said sums should be divided among his said children share and share alike. Certain trustees were nominated and appointed to carry out the purposes of the settlement.

Mr Bowie died on 5th January 1856 without having exercised the power of apportionment reserved to him in the marriage-contract. He was survived by his wife, and also by six children, viz., (1) Marizza Bowie or Paterson, (2) John Mure Bowie, (3) Elizabeth Thurburn Bowie or Hopcroft, (4) Annetta Antonia Louisa Bowie or Edwards, (5) Robert Thurburn Bowie, and (6) Henrietta Isabella Bowie.

Mrs Bowie died on 23rd January 1888, survived by the same children, leaving a trust-disposition and settlement dated 12th May 1877, by which she conveyed her whole estate to trustees for certain purposes. Inter alia, she directed her trustees to pay her daughter Mrs Marizza Bowie or Paterson the sum of £100, and to pay the residue of her whole estate to her whole children who survived her, other than Mrs Paterson, in such shares as she should appoint by any writing under her hand, failing which in equal shares, and she declared that these provisions in favour of all her children should be “in full satisfaction to them of legitim and executry, and of all claims competent to them on my decease, whether legally or under my said marriage-contract.”

Mrs Bowie died possessed of moveable estate to the amount of £9584, 10s. 11d. She left no other testamentary writing, or other writing under her hand dealing with her estate. She had, however, become party to a bond and assignation in security dated 2nd November 1883, granted by her son John Mure Bowie in favour of the Scottish Life Assurance Company for £500, whereby he assigned to the company in security of a loan his whole right and interest to the sums held in trust under the mutual disposition and settlement, and the disposition by Mr Thurburn already referred to, in so far as they might then belong or thereafter become payable to him. The bond and assignation then proceeded—“And I, the said Annetta Antonia Louisa Thur-burn or Bowie, having regard to my right of apportionment or disposal of the funds and others held in trust as aforesaid, and considering that I have, for the further security of the said company, agreed to exercise now in favour of my said son the said John Mure Bowie the rights and powers conferred upon me by the said mutual settlement and disposition of the said Robert Thurburn: Therefore I have apportioned and do hereby apportion to the said John Mure Bowie and to his heirs and assignees a sum of not less than one-fifth part or share of the foresaid sum of £4000, and a further sum of not less than one-fifth part or share of the price or value that may be obtained for the said house No. 28 Regent Terrace, when the said house comes to be sold.”

On William Bowie's death in 1856 the trustees under the marriage-contract and mutual trust-disposition and settlement entered into possession of the trust-estate. They received payment from the Assurance Companies of the sum of £3790, 7s. 10d., and invested the same along with a sum of £209, 12s. 2d. which was granted by Mr Thurburn, the father of Mrs Bowie, in order to make up the sum of £4000 contained in William Bowie's obligation in the marriage-con-tract. Mr Thurburn had by a previous disposition conveyed the house 28 Regent Terrace, Edinburgh, to the same trustees, directing that it should be held for Mr and Mrs Bowie's liferent, and that the price of the same, when sold as therein directed, should be applied in the same manner as the sums payable under the policies of assurance. When Mrs Bowie died the sums held in trust under the antenuptial contract and the mutual disposition and settlement were a bond and disposition in security for £4000 over heritable subjects in Aberdeen, and the house in Regent Terrace, Edinburgh.

These funds having become divisible on the death of Mrs Bowie, Mrs Paterson claimed that they should be divided equally among the children of the marriage. The view of the trustees was

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that by her trust-disposition and settlement and the bond and assignation in security mentioned above. Mrs Bowie had validly exercised the power of appointment reserved to her in the marriage-contract, and that the trust funds should be divided into five shares, one-fifth whereof should be paid to John Mure Bowie, and the remaining shares distributed equally among the other four children of Mrs Bowie, excluding Mrs Paterson. They therefore refused to accede to Mrs Paterson's claim.

In these circumstances this case was presented to obtain the judgment of the Court on the questions which had arisen. The first parties to the case were the trustees under the marriage-contract and mutual disposition and settlement of Mr and Mrs Bowie. Mrs Paterson was the second party, and the third parties were the other four children of Mr and Mrs Bowie or those in their right.

The questions submitted for the opinion of the Court were the following:—“(1) Whether the first parties, the said trustees, are bound to divide the trust-estate mentioned in article 6 of the foregoing case equally among the whole children of the marriage of Mr and Mrs Bowie? or (2) Whether the deeds referred to contain a valid appointment of one-fifth of the said trust-estate in favour of John Mure Bowie, the balance being unappointed? or (3) Whether the said deeds contain a valid appointment of the whole trust-estate to the effect of excluding the party of the second part from any right to a share of the same, and dividing it among the parties of the third part as follows, viz., one-fifth to John Mure Bowie, and four-fifths equally among the other four children of Mr and Mrs Bowie, or those in their right?

The first and third parties argued—Mrs Bowie alone had the power of appointment here as her husband had died without exercising his power of appointment. She had validly executed that power when she joined in the bond and assignation in security granted by John Mure Bowie, as was expressed in the deed itself. That left four-fifths of the trust money undisposed of. But she had provided a scheme of distribution of that sum by her trust-disposition and settlement. If a testatrix possessing power to make a scheme of distribution of a certain part of her estate made a setttlement disposing of her whole estate in a particular manner, by leaving it to an executor, &c., the part over which she had the power of apportionment was divided in the manner provided in the settlement, as it was not necessary to narrate particularly that she was exercising her power of appointment— Smith v. Milne, June 6, 1826, 6 S. 670 (N. Ed. 685); Hyslop v. Maxwell's Trustees, February 11, 1834, 12 S. 413; Grierson v. Miller, July 3, 1852, 14 D. 93; Mackenzie, 19th June 1874, 1 R. 1050. If the testatrix clearly expressed her intention of leaving the property over which she had power in a certain manner the Court would give effect to her intention— Mackie v. Mackie's Trustees, July 4, 1885, 12 R. 1230. It was plain that she had so expressed her intention here. The appointment to John Mure Bowie of one-fifth of the trust-estate was quite plain and valid. Then she left £100 to Mrs Raterson, which was to come out of the general estate, and she directed that the residue of her estate, including the trust funds, should be divided equally among her other children, plainly showing that Mrs Paterson was not intended to participate at all in the scheme of division. If she had meant otherwise she would have granted John Mure Bowie one-sixth only, and not one-fifth of her estate. The recent case of Whyte v. Murray, November 16, 1888, 16 R. 95, which appeared to be against the contention of these parties, could be distinguished from the present, as the sum there to which the son was found to have no title had originally been the property of the wife, and at the date of the case she was alive and in the enjoyment of the securities. These elements were absent from this case.

The second party argued—No appointment had been made. It was admitted that Mr Bowie had not exercised his power of appointment. Neither had Mrs Bowie. The bond and assignation in security was merely an arrangement with John M. Bowie to enable him to borrow more easily from the insurance company. When it was executed Mrs Bowie was not thinking at all of the shares of the trust funds which were to go to the children. It was admitted that Mrs Paterson's £100 was to come out of Mrs Bowie's own estate, and Mrs Paterson claimed no more from that fund, but she was entitled to get a fair share of the marriage trust funds so far as these had not been disposed of by any deed of apportionment executed by the spouses.

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