Scottish Court of Session Decisions

This was a special case raising the question of the validity of the exercise of a power of appointment conferred in the marriage-contract between John Archibald Campbell and Miss Emma Legh or Campbell. The first parties to the case were the trustees acting under the marriage-contract; the second parties were the trustees under the trust-disposition and settlement of the Rev. John Archibald Legh Campbell, son of the

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parties to the marriage-contract; and the third party was Miss Carolina Emma Campbell, their only surviving child.

The case set forth, inter alia—“By contract of marriage in the English form, dated 18th October 1822, between John Archibald Campbell, Clerk to the Signet, and Mrs Emma Legh or Campbell, his wife, it is, inter alia, stipulated that after the decease of the spouses the trust funds shall be held by the trustees ‘in trust for all and every or any one or more of the child or children, grandchild or grandchildren, or other issue of the said intended marriage, at such age or ages, time or times, and in such sort, manner, and form as the said John Archibald Campbell and Emma Legh, his intended wife, at any time during their joint lives, in and by any deed or deeds, or writing or writings, with or without power of revocation, to be by them sealed and delivered in the presence of and attested by two credible witnesses, shall direct or appoint; and in default of such joint direction or appointment, then as the survivor of them the said John Archibald Campbell and Emma Legh, and as to the said Emma Legh, whether she shall be then covert or sole, shall by any deed or deeds, writing or writings, with or without power of revocation, to be by him or her signed, sealed, and delivered in the presence of and attested by two credible witnesses, or by his or her last will and testament in writing, or any codicil or codicils thereto, to be by him or her signed and published in the presence of and attested by three credible witnesses, shall direct or appoint; and in default of any such direction or appointment, or as to such part of the said trust funds and premises concerning which no such appointment shall be made, or to which no such direction or appointment shall extend, upon trust to pay, assign, and transfer the said sums of money, funds, and securities, and the interest and proceeds thereof, to such child or children, if more than one, equally, to be divided between them share and share alike as tenants in common, and their respective executors, administrators, or assigns, the issue of any deceased child taking his, her, or their parent's share.”

Mrs Campbell died on 14th June 1855, and Mr Campbell died on 7th September 1866. There were three children of the marriage, all of whom survived their parents, viz.—(1) The Reverend John Archibald Legh Campbell, sometime Vicar of Helpston, who was never married, and who died on 5th May 1901; (2) Miss Carolina Emma Campbell, who still survived; and (3) Miss Charlotte Amelia Campbell, who died in 1875 unmarried and intestate.

Mr and Mrs Campbell did not execute any deed of appointment of the trust funds during their joint lives. Mr Campbell left a trust-disposition and settlement dated 5th July 1865, and four separate papers of directions (referred to in and confirmed by the trust-disposition), all dated 20th December 1855, with two additions thereto, the one dated 1st September 1859 and the other 18th July 1863. These papers of directions were all holograph of Mr Campbell, and were neither sealed nor witnessed. The trust-disposition was executed in the ordinary form, and signed before two witnesses. No. 4 of these papers of directions was the only one bearing on the questions raised in this case. It was addressed to the trustees under the marriage-contract, and in it Mr Campbell professed to exercise the power of appointment.

The trust-disposition and settlement proceeded on the narrative that the testator had executed certain holograph directions (viz., the papers of directions above-mentioned), which he was now desirous of confirming, and the second trust purpose was “for payment of the sums of money and fulfilment of the purposes contained in the said directions.”

The case did not contain any statement as to what the law of England as to the attestation of documents was, either at the date of the marriage-contract or subsequently.

The first and second parties maintained—“(1) That the paper of directions No, 4 contains a valid exercise of the power of appointment to the marriage-contract funds; (2) that at all events the confirmation in Mr Campbell's trust-disposition is a valid appointment.”

The third party maintained that the paper of directions was invalid as an appointment, in respect that it was not executed with the formalities prescribed by the marriage-contract, and that the confirmation in Mr Campbell's trust-disposition was invalid as an appointment for the same reason.

The question of law was—“(1) Was the power of appointment to the marriage-contract fund validly exercised by Mr Campbell, either (1) by the paper of directions No. 4, or (2) by his trust-disposition confirming the same?”

There were also subsidiary questions which in the view taken by the Court it was found unnecessary to consider.

Argued for the first and second parties—The exercise of the power was valid. The formalities required by the marriage-contract were those required by the law of England at the time. The law was altered by the Wills Act, 1 Vict. cap. 26, which provided (section 10) that a power of appointment executed by a writing complying with the requisites of the Act should be valid even although it did not comply with the formalities required by the deed by which it was conferred. If the present question had arisen in England, the paper of directions, confirmed by the trust-disposition, would have been a valid exercise of the power— Taylor v. Meads, 1865, 4 De G. J. & S. 597. The Court would not readily refuse effect to a deed executed in accordance with the forms prescribed in Scotland, and showing plainly the intention of the granter— Kennion v. Buchan's Trustees, February 7, 1880, 7 R. 570, 17 S.L.R. 380.

Argued for the third part—The exercise of the power was invalid. If a marriage-contract conferred a power and provided

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that it should be exercised in a certain way, it could not be exercised in any other way. It was familiar law that a testator could direct his trustees to give effect to any writing under his hand, though not holograph or tested. The present was the converse case, and the same reasoning applied. If the point was not directly settled in Scotland it was implied in the decision in Nasmyth v. Hare, July 27, 1821, 1 Sh. App. 65. It was clearly settled in England— West v. Ray, 1854, 23 L.J. Ch. 447; Sugden on Powers, 8th ed. p. 207. The English Wills Act had no application to the case. Its effect was not admitted as a fact in the case, and therefore could not be known to or considered by the Court. At all events it was not applicable to Scotland.