Scottish Court of Session Decisions

The late Lockhart Mactavish died domiciled in Scotland on 15th February 1899 leaving a trust-disposition and settlement dated 31st January 1898, and registered in the Books of Council and Session on 5th April 1899.

The sixth head of Mr Mactavish's trust-disposition and settlement, dealing with the residue of his estate, was in the following terms:—“With regard to the residue and remainder of my means and estate, I direct my trustees to hold the same for behoof of my grand-nephews and grandnieces after mentioned, videlicet, James Schofield, Frederick Schofield, Lockhart Alexander Schofield, Letitia Maria Schofield or Macfarlane, Margaret Florence Schofield, and Mary Schofield, children of my niece the late Letitia Lockhart Hargrave or Schofield; and Francis Hargrave Ogston, Walter Henry Ogston, Mary Letitia Ogston or Grierson, and Flora Mactavish Ogston, children of my niece the late Mary Jane Hargrave or Ogston, for the alimentary liferent use of my said grand-nephews and grand-nieces respectively; and the free income, after deduction of expenses, may be paid to each on his or her own receipt, and shall not be assignable or affectable by the debts or deeds or open to the diligence of the creditors of the several liferenters; and subject to the rights hereby conferred on the said liferenters respectively, and to the declarations hereinafter written, the fee or capital shall belong to the issue of said grandnephews and grand-nieces in such shares or proportions as the respective liferenters may appoint, and failing appointment equally per stirpes, and the fee or capital shall be payable to such issue only on the death of the respective liferenters, prior to which there shall be no vested interest in the fee or capital; and failing issue of any of the liferenters who may survive me, the capital destined to issue shall be disposed of as the respective liferenters may by will direct, and failing direction shall go to increase the shares of the surviving brothers and sisters german of the deceasing life-renter.”

Francis Hargrave Ogston, one of the above-named grand-nephews of the testator, died without issue on 17th April 1901 leaving a will dated 3rd November 1894, and registered in the Books of Council and Session on 11th June 1902, by which he assigned, disponed, and conveyed, and made over to and in favour of his sisters the said Mary Letitia Ogston (now Grierson), Flora Mactavish Ogston, and his brother the said Walter Henry Ogston, and the survivors and survivor of them, ‘the whole estate and effects of every description, heritable and moveable, real and personal, of which I may die possessed.’ and he appointed the said Mary Letitia Ogston (now Grierson), Flora Mactavish Ogston, and Walter Henry Ogston, and the survivors and survivor, to be the executors or executor of his will.

Questions having arisen as to whether Mr Ogston's will operated as an exercise of the power conferred upon him in the trust-disposition of Mr Mactavish, the present special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the trustees acting under Mr Mactavish's settlement, and (2) the executors acting under Mr Ogston's will.

The case narrated the facts above stated. It contained no statement whether Mr Ogston did or did not know of the power of appointment conferred upon him by Mr Mactavish's settlement.

The questions of law were—“1. Are the second parties entitled under the will of the said Francis Hargrave Ogston to payment of the capital of the share liferented by him under the trust-disposition and settlement of the said Lockhart Mactavish? or 2. Is the will of the said Francis Hargrave Ogston ineffectual to exercise the power of disposal of the capital of said share, and must it accordingly be retained in the hands of the first parties so as to increase the shares liferented by the brother and sisters-german of the said Francis Hargrave Ogston?”

Argued for the first parties—The will was not an effectual exercise of the power. The result of the authorities was that there was no rule that a general bequest of a person's whole estate operated as an exercise of a power of appointment— Smith v. Milne, June 6, 1826, 4 S. 679; Hyslop v. Maxwell's Trustees, February 11, 1834, 12 S. 413, per Lord Corehouse, at p.416; Mackenzie v. Gillanders,

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June 19, 1874, 1 R. 1050, 11 S.L.R. 612; Bertram's Trustees v. Matheson's Trustees, March 10, 1888, 15 R. 572, 25 S.L.R. 385; Whyte v. Murray, November 16, 1888, 16 R. 95, 26 S.L.R. 67; Bowie's Trustees v. Paterson, July 16, 1889, 16 R. 983, 26 S.L.R. 676; Dalgleish's Trustees v. Young, June 29, 1893, 20 R. 904, 30 S.L.R. 802; Clark's Trustees v. Clark's Executors, February 16, 1894, 21 R. 546, 31 S.L.R. 430; Montgomery's Trustees v. Montgomery, June 27, 1895, 22 R. 824, 32 S.L.R. 628. It was a question of circumstances, and here the fact that the will supposed to exercise the power was made before the power was granted was an element in favour of the argument that the power was not exercised by it.

Argued for the second parties—Admitting that there was no absolute rule that a will in general terms must be held to be an exercise of a power of appointment, the presumption was that the power was exercised. Thus Lord Brougham, in discussing the difference between English and Scotch law on this point, laid down the rule that “unless it can be shown that it was not his intention to execute the power it shall be held a good execution”— Cameron v. Mackie, August 29, 1833, 7 W. & S. 106, at p. 141. The fact that the will was executed before the power was conferred was of no importance—a will spoke as at the testator's death— Hyslop v. Maxwell's Trustees, cit. supra. A will that was universal in its terms was universal in its application— Grierson v. Miller, July 3, 1852, 14 D. 939, per Lord J.-C. Hope. The cases of Dalgliesh's Trustees and Clark's Trustees (both cited supra) were strong authorities to the same effect.