03 December 1912
Garden's Executor |
v. |
More. |
I do not think I need say more than that, in my opinion, the question is absolutely disposed of by the case of Baillie's Executor v. Baillie, and unless we are prepared to overrule that case—which we cannot do—I do not think we could decide otherwise. And I am bound to say that, although there is upon the authorities, and especially upon the older authorities, some difference, it seems to me that the rule in Baillie's case is most consonant with common sense. An old couple like this, leaving mutual fortunes to each other, do it entirely out of what the settlement says, viz., “mutual love and affection to each other,” and they really do not think of each other's heirs at all.
The only other point was this, whether there was a right in the widow of the husband's brother, Alexander Garden, to get £50? I think there is no such right. It is quite possible to constitute a precatory trust which is binding upon an executor; but if estate is left to a person not as an executor but as a beneficiary, then it must be left with a clearly expressed condition in order to bind him.
Accordingly I propose that we should answer the first question in the affirmative and the second and third questions in the negative.
The Lord President intimated that
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