Scottish Court of Session Decisions

Mrs Margaret Amey or Walker, on the 18th day of December 1903, executed a 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 seven hundred pounds 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 twenty-five pounds sterling, and to Violet Looz, step-daughter of my said niece, the sum of twenty-five pounds 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 redeceasing me, the share of the preeceaser 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; and I hereby authorise and empower my trustees to sell the trust-estate or any part thereof at any time they shall think fit; and also to appoint factors and law agents, from their own number or otherwise, and to allow them suitable remuneration; and I empower my trustees to invest the trust-funds in … And I further hereby declare that these presents shall not be revocable by me upon any ground whatever …” The trust-disposition was handed over to the trustees and registered by them on the 23rd of December 1903, and the trustees were immediately put into possession of the funds, which were administered by them until the truster's death.

Upon the same date—viz., 18th December 1903—she executed the following testament:—“I, Mrs Margaret Amey or Walker, … being desirous of settling my affairs in the event of my death, do hereby nominate and appoint John Oliver, solicitor, residing at Lynnwood, Hawick, and John Smith, residing at No. 2 Wellogate Place, Hawick, or the survivor of them, to be my

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sole executors or executor: And I hereby leave and bequeath the whole personal estate of every description which shall belong to me at the time of my death, after deducting therefrom mysickbed and funeral expenses, and all my just and lawful debts and the expenses of realising my said estate, to the following persons, in equal shares, videlicet, Margaret Reid or Amey, my mother, John Amey, residing in Edinburgh, my brother, Mary Amey or Laing, wife of William Laing, residing in Glasgow, my sister, and Isabella Amey or Murdoch, my sister in Australia; 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; and I reserve my own liferent of the premises, with power to alter, innovate, or revoke these presents at any time as I shall think proper; and I dispense with delivery hereof; and I revoke all previous settlements made by me …”

By a codicil, dated 16th January 1904, a legacy of £25 was left to the said Mrs Mary Amey Laing or Looz, and by another codicil, dated 1st March 1904, another legacy of £50 to the same lady. The testament and codicils were registered on 18th March 1904.

Mrs Walker died on 12th March 1904, survived by her mother Mrs Margaret Amey, her brother John Amey, and her two sisters Mary Laing and Isabella Murdoch. She was also survived by her husband David Walker, who claimed, jure relicti, half of the fund held by the trustees under the trust-disposition, maintaining that the trust-disposition was revocable and testamentary, and therefore ineffectual to defeat his right.

The beneficiaries under the trust-disposition claimed among them the whole fund, maintaining that the trust-disposition was valid, operative, and irrevocable, and that accordingly the truster at the date of her death was not vested in the moneys conveyed by the trust-disposition, and that therefore they were not subject to the husband's jus relicti.

In these circumstances the trustees acting under the trust-disposition brought an action of multiplepoinding, in which the fund in medio was the fund in their hands. They concurred in the contention of the beneficiaries.

The Lord Ordinary ( Dundas), on 17th June 1905, pronounced an interlocutor finding that the trust-disposition was a valid and operative document.

Opinion.—“In this multiplepoinding the fund in medio consists of certain moneys conveyed to trustees (who are nominal raisers) by the late Mrs Walker by a trust-disposition, dated 18th Dec ember 1903, so far as remaining in their hands. The principal question which I have to decide is whether or not this deed was of a revocable character.

The husband of the truster maintains the affirmative of this proposition, and claims one-half of the fund jure relicti. The negative is maintained by the trustees, who claim to hold and administer the whole fund in terms of the trust-disposition, and by those persons who would take benefit if the deed is an irrevocable one.

“I may summarise the contents of the trust-disposition. The truster at, and for some years prior to, its execution was living apart from her husband, and carrying on business on her own account as a tobacconist in Hawick

[His Lordship then narrated the narrative and the provisions of the trust-disposition, the execution of the testament and its provisions, the death of Mrs Walker survived by her mother, brother, sisters, and husband, and the claim by the husband; v. sup.…

The reported cases upon this branch of the law are very numerous. Every case must of course depend upon the precise terms of the deed under consideration, but one may derive valuable aid from the decisions and dicta in the books as to the general rules of law applicable to such cases, and as to the features in such deeds which have been held to make for or against revocability. Perhaps the most instructive aids to the just consideration of the trust-disposition here in question are the recent cases of Shedden, 23 R. 228, where a deed was held not to be revocable, and Byres' Trustees, 23 R. 332, where the contrary result was arrived at. The question must always be one of intention, whether, on the one hand, the granter intended the trust to be one merely for the administration of his affairs, he retaining the radical and beneficial interest in the estate conveyed, and being entitled to revoke the deed at pleasure, or whether, on the other hand, he must be held to have truly divested himself of the estate so as to enable the trustees to hold it against him.

In my opinion Mrs Walker's trust-disposition falls under the second of these alternative categories. It appears to me that it contains most, if not all, of the characteristics which are held to indicate that a deed is not of a testamentary nature but is irrevocable. In particular, I may note (1) that this deed contains a de prœsenti conveyance to trustees, not of the truster's whole estate but of a specified sum of money; (2) that it is expressly declared that it shall not be revocable upon any ground whatever; (3) that in point of fact the money was immediately handed over by the granter to the trustees, and the deed delivered to them and recorded. As indicating the strong significance of delivery following upon a declaration of irrevocability in the deed itself, I may refer especially to the opinion of Lord Kinnear in Byres’ case (sup. cit.); (4) that the express power to the trustees to apply the capital, in whole or in part, for the granter's behoof, in their own absolute discretion, seems adverse to the view that she could at any time have called upon them to denude of the whole gift; (5) that the fact that absolute

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vesting in certain of the persons to whom the trustees are directed to pay the residue of the trust fund after the truster's death, did not emerge until that date, is not hostile to the view that the deed could not be revoked— Lyon's Trustees, 3 Fr. 653; and (6) that the argument for revocability does not, perhaps, arise under quite such favourable circumstances, whenputforward by a third party after the granter has died without having made any attempt at revocation, as when it is urged by the granter himself during his lifetime. For these reasons, I am of opinion that the contention put forward by Mr Walker is unsound and cannot be given effect to.” … [His Lordship then dealt with another branch of the case.] …

Walker reclaimed, and argued—The trust-disposition was merely an administrative and testamentary deed, the truster retaining the radical interest in the estate and being entitled to revoke at pleasure. That such was the truster's intention was apparent not only from the preamble but from the general tenor of the deed, especially when read along with the testament. The declaration of irrevocability was in itself of little moment— Smitton v. Tod, December 12, 1839, 2 D. 225; murison v. Dick, February 10, 1854, 16 D. 529; Ramsay v. Ramsay's Trustees, November 24, 1871, 10 Macph. 120, 9 S.L.R. 106; Menzies v. Murray, March 5, 1875. 2 R. 507, 12 S.L.R. 373; Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027, 15 S.L.R, 690; Mackie v. Gloag's Trustees, March 9, 1883, 10 R. 746, 20 S.L.R. 486; Byres' Trustees v. Gemmell, December 20, 1895, 23 R. 332, 33 S.L.R. 236; Watt v. Watson, January 16, 1897, 24 R. 330, 34 S.L.R. 267; Lyon v. Lyon's Trustees, March 12, 1901, 3 F. 653, 38 S.L.R. 568. Shedden v. Shedden's Trustees, November 29, 1895, 23 R. 228, 33 S.L.R. 154, was distinguishable. Such a deed should not be allowed to defeat a husband's rights. It would not have defeated legitim-Eraser, H. & W., ii. 1001; Nicolson's Assignee v. Macalister's Trustees, March 2, 1811, 3 D. 675, 16 F.C. (octavo) 728.

Argued for the respondents—The deed was irrevocable for the reasons set forth by the Lord Ordinary in the last paragraph of hisopinion. Shedden (quoted above); Murray v. Macfarlane's Trustees, July 17, 1895, 22 R. 927, 32 S.L.R. 715; Smith v. Davidson, December 21, 1900, 8 S. L.T. 354, were authoritative decisions. In Byres' Trustees (quoted above), the most important adverse authority, the language of the deed was obviously testamentary.