Scottish Court of Session Decisions

On 27th January 1905 Mrs Charlotte Wheeler or Bray, widow, residing at Wimborne House, Albert Road, Bromley Common, Kent, and others, beneficiaries under the trust-disposition and settlement of the deceased James Bruce of Inverquhomerie, raised an action against, inter alios, Henry Peterkin, solicitor, Aberdeen, the sole surviving trustee of the said James Bruce, inter alia, to have it declared that Mrs Diana Wheeler or Bruce, widow of the said James Bruce, had not validly exercised a power of appointment over one moiety of the proceeds of the sale of certain property at Chislehurst, Kent, known as Black-mount, conferred upon her by her husband's trust-disposition and settlement.

They, inter alia, pleaded—“(1) On a sound construction of the fourteenth purpose of the said trust-disposition and settlement and codicils thereto of the said James Bruce, the legacy of the first moiety of the Blackmount property referred to in summons, or the proceeds of a sale thereof, vested (in default of any appointment in terms of such purpose of his wife) in the pursuers and the other parties mentioned in the said fourteenth purpose as at the death of his wife, according to their share as mentioned therein. … (2) The wife of the said James Bruce never having exercised the power of appointment conferred on her by the said fourteenth purpose of his settlement over the moiety in question, the pursuers are entitled to have decree to that effect pronounced in terms of the declaratory conclusions of the summons.”

The facts are fully stated by the Lord Ordinary (Dundas) in his opinion infra.

The following is the text of the material portions of the deeds of which the Lord Ordinary states the general tenor:—I. Trust-disposition and settlement of James Bruce, dated 14th May 1897—“I, James Bruce, do … hereby … dispone [to certain trustees] all and whole the lands of Inverquhomery … as also my whole moveable means and estate of every kind and denomination, heirship moveables included, but excepting my freehold property in England consisting of a messuage or tenement and premises at Chislehurst, Kent, which are to be devised and settled by me in trust hereafter in the fourteenth place … But declaring always that these presents are granted in trust for the ends, uses, and purposes after mentioned, videlicet … (Fourth) that my trustees shall convey and make over to my said wife, subject to the declaration after written, all the furniture and effects which may at the time of my death be in the mansion-house of Inverquhomery.… But I declare and provide that although the furniture, effects, and others hereby in the fourth place directed to be conveyed and made over to my said wife are intended by me to be used and disposed of by her as

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her own absolute property, yet in the event of her not having herself disposed of them during her lifetime, or by any testamentary writing to take effect after her death, my trustees shall divide and deliver such of the said furniture, effects, and others as may be undisposed of at the death of my said wife to and amongst her grandnieces, Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick, equally among them, or as nearly equally as my trustees shall find to be practicable and as they may consider just in their discretion, which no one shall be entitled to interfere with or question.

… Eighth, that my trustees shall provide for the full and free liferent use and enjoyment by my said wife of the income of the whole of my said estates, means and effects … Twelfth, on the death of my said wife in case she survive me my trustees shall pay and convey and make over the residue of my said moveable and personal estate to such person or persons, or in such way or manner as my said wife may direct and appoint by any writing under her hand, and failing such direction and appointment by her my trustees on her death shall pay and convey and make over the said residue to the said Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick, and the survivors and survivor of them equally, but declaring that should any of them have redeceased the time appointed for such division leaving lawful issue the share of the said residue to which the party so predeceasing would have been entitled if alive shall be paid and divided to and amongst such lawful issue equally share and share alike.… Fourteenth … I devise my freehold house and premises at Chisle-hurst aforesaid, known as Blackmount, to my trustees upon trust to permit my said wife to occupy the same during her life, or so long as she shall think fit so to do …, and after her death or in her lifetime if she shall elect no longer to occupy … to sell … and I declare that my trustees shall stand possessed of the proceeds of my freehold house and premises known as Black-mount aforesaid, upon trust if my wife shall be living at the time of sale to invest the same … and to stand possessed of the investments hereinbefore directed to be made (hereinafter called ‘ the trust fund’) and of the annual income thereof upon trust to pay the income thereof to my said wife during her life for her separate use without power of anticipation, and after her death shall stand possessed of the capital and income of the trust fund, or if she shall have died prior to such sale of my Black-mount estate then of the proceeds of sale of my said Blackmount estate, upon trust to divide the same into two equal moieties, and shall stand possessed of one moiety thereof upon and for such trusts, intents, and purposes as my said wife shall, whether covert or sole, by will or codicil appoint, and in default of such appointment or so far as no such appointment shall extend, then upon trust to divide the same equally (except as hereinafter mentioned) amongst the following persons, namely, my wife's surviving sister Mrs Charlotte Wheeler or Bray, her niece Mrs Mary Ann Hedges or Freeman, all the children then living of the said Mary Ann Hedges or Freeman (except Kate Freeman and Emily Blanche Freeman), all the children then living of the said Charlotte Wheeler or Bray (except William Bray), all the children then living of my wife's niece Mrs Rosa Bray or Warwick (except Dora Sylvia Warwick), my wife's half brother Edward Warwick, all the children then living of my wife's half brother William Warwick, and all the children then living of the said Edward Warwick (except his eldest daughter Ellen Matilda), so nevertheless that the said Mary Ann Hedges or Freeman and Rosa Warwick or Bray shall respectively take each a double share in the trust fund: And I direct that all such children and grandchildren shall take equally per capita with the other persons hereinbefore named, and shall stand possessed of the other moiety thereof upon trust to pay the sum of £200, which shall carry interest at the legal rate from the date of the death of my said wife, to Charles Warwick, who is now in my service at Blackmount aforesaid : And subject thereto shall stand possessed of such second moiety in trust for all or some one or more of my said wife's three grandnieces Kate Freeman, Emily Blanche Freeman, and Dora Sylvia Warwick, at such times, in such manner, and subject to such conditions as my said wife, whether covert or sole, shall by deed or will appoint, and in default of or subject to such appointment in trust for my wife's said three grandnieces or such of them as shall respectively attain the age of twenty-one years or be married, in equal shares as tenants in common.”

II. Will of Mrs Diana Bruce, widow of James Bruce, dated 29th April 1903—“I, Mrs Diana Bruce, widow of the late James Bruce, and residing at Inverquhomerie, Longside, with the view of providing for the disposal of my means and estate after my death, hereby appoint Henry Peterkin, solicitor in Aberdeen, to be my executor with all the usual powers; and with reference to the furniture and effects referred to in my said husband's settlement in article fourth thereof, and there directed to be made over to me, as well as with reference to any other effects at Inverquhomerie belonging to me, I provide as follows:—My niece Kate Freeman shall be entitled as her absolute property to such articles of furniture as she may select and as my executor may consider suitable and sufficient to furnish a house for her, and which shall be delivered over to her out of said furniture at Inverquhomerie. With regard to silver my said niece Kate Freeman shall receive the larger tea service and large tray and tea urn, my niece Emily Blanche Freeman or Blackett shall receive the small tea set, and the remaining silver shall be divided by my executor between Kate Freeman above named and the above named Emily Blanche Freeman or Blackett in such way as shall in his opinion give Kate two-thirds of the value thereof and Emily one-third of the value

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thereof. As regards linen, bedding, and blankets, these shall be divided amongst the said Kate Freeman, the said Emily Blanche Freeman or Blackett, and my niece Rose Warrack, but so that my executor may in his opinion give Kate the best share. The crockery and other things of that kind and the large pictures brought from Chislehurst shall be divided between Kate and Emily above referred to. The whole furniture and effects referred to in article fourth of my said husband's settlement, and any other furniture and effects belonging to me at Inverquhomerie, and not hereby specially disposed of, shall be sold, and the free proceeds after deducting all duties and expenses thereon shall be paid over to the said Kate Freeman and the said Emily Blanche Freeman or Blackett in the proportions of two-thirds thereof to Kate and one-third thereof to Emily. And my said executors shall have full discretion as to the divisions above directed and as to what is to be sold. And as regards the remainder of my means and estate I provide that after payment of all my debts and freeing my means and estate of all obligations thereon, the same shall be disposed of as follows: First, in payment of the following legacies, viz., to william Davidson, gardener, if in my service at the time of my death, the sum of fifty pounds, to my sister Mrs Charlotte Freeman the sum of five hundred pounds, to my niece Rose Warrack the sum of five hundred pounds, to my grandniece Mary Ann Freeman the sum of two hundred pounds; and I direct that the residue of my means and estate shall be divided between my said nieces Kate and Emily in the proportions of two-thirds thereof to my said niece Kate Freeman and one-third thereof to my said niece Emily Blanche Freeman or Blackett.”

III. Codicil of Mrs Diana Bruce, dated 23rd November 1903. (This codicil altered the amounts of certain legacies and is immaterial.)

IV. Codicil of Mrs Diana Bruce, dated 22nd March 1904— “I, Mrs Diana Bruce, widow of the late James Bruce, and residing at Inverquhomerie, Longside, have reconsidered the terms of the will made by me the twenty-ninth day of April Nineteen hundred and three, and of the codicil made by me the twenty-third day of November Nineteen hundred and three, and desire to make the following legacies in addition to those mentioned therein : … and further considering that by the twelfth purpose of my late husband's settlement, which is dated the fourteenth day of May Eighteen hundred and ninety seven, and recorded along with two relative codicils in the Books of the Lords of Council and Session on the nineteenth day of February Nineteen hundred, the trustees acting under the said settlement were directed to pay and convey and make over the residue of my said husband's moveable and personal estate to such person or persons or in such way or manner as I might direct and appoint by any writing under my hand, I therefore hereby direct and appoint the said trustees to pay and convey and make over the said residue of my said husband's moveable and personal estate to my said grandnieces Kate Freeman and Emily ilanche Freeman or Blackett and the survivor of them, but declaring that should either of them have predeceased me leaving lawful issue the share of the said residue to which such predeceaser would have been entitled if alive shall be paid and divided among such lawful issue equally share and share alike, and in the event of females being entitled to receive any principal sums of money under this provision being in minority when such sum shall become payable, the said trustees shall during such minority of each such female invest the sum to which she shall be so entitled in such security as is authorised by law and apply the interest thereof for her benefit in such manner as the said trustees shall in their absolute discretion see fit; and subject to the foregoing amendments and additions I homologate and approve of said settlement and codicil. I provide that the said residue of my said husband's moveable and personal estate is to be paid equally to my said grandnieces equally if both survive, and direct and appoint the said trustees to paw the same accordingly …”

V. Codicil of Mrs Diana Bruce, dated 8th April 1904. (This codicil merely altered the amount of certain legacies and is immaterial.)

On 1st June 1905 the Lord Ordinary (Dundas) pronounced the following interlocutor:—“.… Finds that the power of appointment in regard to the first moiety of the proceeds of the sale of Blackmount, conferred upon Mrs Bruce by the fourteenth purpose of the trust-disposition and settlement of her husband, was validly exercised by her will, dated 29th April 1903”

Opinion.—“James Bruce of Inverquhomerie, in Aberdeenshire, died on 12th February 1900, leaving a trust-disposition and settlement, dated 14th May 1897, and two codicils. The main question in the case is whether or not his wife validly exercised a power of appointment conferred upon her by the fourteenth purpose of the said trust-disposition over one moiety of the proceeds of the sale of certain freehold premises at Chislehurst, known as Black-mount, which belonged to her husband. By the said fourteenth purpose Mr Bruce devised Blackmount to his trustees, upon trust to permit his wife to occupy it during her life upon certain conditions, and after her death, which occurred on 10th April 1904, to sell it by public auction at a reserved price to be signified in writing by him (and which was in fact signified by him as at £13,000), and he gave directions as to the means to be adopted for selling the property if not sold at such ublic auction. In point of fact, the trustees ave found it impossible to sell Blackmount at the price signified by Mr Bruce, and I am informed that they have recently obtained the authority of the Court of Chancery in England to sell it for the best price which they can obtain. Mr Bruce further directed his trustees by the said fourteenth purpose, after the death

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of his wife, or if she should have died (as happened) prior to the sale of Blackmount, to stand possessed of the proceeds of such sale upon trust to divide the same into two equal moieties, and that they should stand possessed of one moiety thereof upon and for such trusts, intents, and purposes as his said wife should by will or codicil appoint, and in default of such appointment, or so far as any such appointment should not extend, then upon trust to divide the same amongst the persons and in the manner therein specified. The second moiety of the proceeds of the sale of Black-mount is not here in question. Other powers of appointment, to which I shall refer later, were by the said trust-disposition and settlement conferred upon Mrs Bruce.

“The pursuers claim to be certain of the persons entitled to take this first moiety, upon the assumption that Mrs Bruce did not validly exercise her said power of appointment in regard to it. The conclusions of the summons are that the said power was not validly exercised by her to any extent; that the executors-nominate of Mrs Bruce and the residuary legatees under the will and codicils have no right or interest of any kind in the said moiety; that the legacy, bequest, or provision of the said moiety vested in the legatees or beneficiaries named in the said fourteenth purpose as at the death of Mrs Bruce, and that it falls accordingly to be divided among the pursuers and the other beneficiaries named in said purpose; and that the pursuers in right of shares of the said moiety are entitled to sell and dispose of their interests by way of sale or security or otherwise. The defenders called are (1) Mr Bruce's surviving and acting trustee, (2) the executors-nominate of Mrs Bruce under her will and codicils, and (3) her residuary legatees.

“The defender, Mr Bruce's trustee, states preliminary pleas to the effect that the pursuers have no title to sue, and that the action is premature and unnecessary. [These were not argued in the Inner House.] These were not very strenuously maintained, and I do not think that there is much substance in them. The theory is that the pursuers' right, if any, is to a share of the proceeds of the sale of Black-mount, whereas no sale has yet taken place, and there is no absolute duty upon the trustee to sell for some time to come. But I think that the material date is not that of actual sale but that of Mrs Bruce's death’, and that if the power of appointment has not been validly exercised by her the pursuers would have a vested interest and would be entitled to sue this action of declarator. Similar pleas are stated on record by the other defenders, but were expressly abandoned at the debate. I see no reason why I should not decide in this action the real question at issue, viz., whether or not Mrs Bruce validly exercised her power of appointment as regards the first moiety of the proceeds of the sale of Blackmount.

“Mrs Bruce's will is dated 29th April 1903. She appoints an executor, and at once proceeds to expressly exercise one of the powers of appointment conferred upon her by her husband's settlement—( fourth purpose)—viz., to dispose of his furniture and effects. There was a good reason for the special exercise of this power, because one of the three ladies to whom, failing appointment, the furniture and effects were destined, in equal shares, by the settlement, viz., Miss Dora Sylvia Warwick, had died on 15th March 1901. Mrs Bruce exercises the power of appointment by a division between the other two ladies in the proportions, roughly speaking, of two-thirds and one-third. The will then proceeds, ‘And as regards the remainder of my means and estate' (a phrase which the defenders point to as indicating that Mrs Bruce considered the subjects of the power which she had just exercised as part of ‘her’ means and estate), and after providing for payment of debts and certain legacies, directs ‘that the residue of my means and estate shall be divided ’ between the two ladies above referred to in the proportions of two-thirds and one-third.

“If this will had to be considered by itself, apart from any codicil, I should say without much hesitation that the residue clause imported a valid exercise by Mrs Bruce of all her powers of appointment (including the one now in dispute) so far as not otherwise specifically exercised. I had the benefit of a full citation of the authorities, from Smith v. Milne, 1826, 4 S. 679, to Tarratt's Trustees, 1904, 6 F. 698. The result of these is, I think, correctly summarised in the last-named case by Lord Trayner, where he says that, ‘it has been decided that words of general conveyance in a will … are a sufficient exercise of a power of appointment possessed by the testator. It is for those who contend that they are not to show reason for their contention.’ Upon a consideration of the will by itself I should hold that the pursuers had clearly failed to rebut the general presumption. It remains to consider whether anything in the codicils can be said to rebut it. By her first codicil, dated 23rd November 1903, Mrs Bruce, on the narrative that she has ‘reconsidered’ her will and ‘desires to make the following alterations thereon,’ bequeaths certain legacies with which this case has no concern. The second codicil, dated 22nd March 1904, narrates that Mrs Bruce has ‘ reconsidered ’ her will and codicil, makes some additional legacies, and bequeaths a small piece of ground (part of Inverquhomerie) which she had obtained in feu from her husband's trustees, in accordance with a direction to them, contained in the eighth purpose of this settlement, to grant such feu to her if she should request it. Mrs Bruce then proceeds in said codicil, upon the narrative of the twelfth purpose of the said settlement, to exercise the power of appointment thereby conferred upon her over the residue of her husband's moveable and personal estate, and to appoint it to the same ladies who are her own residuary legatees, but I not in the same proportions, ‘and subject

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to the foregoing amendments and additions I homologate and approve of said settlement and codicil.’ A third codicil, dated 8th April 1004, need not be noticed. The pursuers say that Mrs Bruce, having thus expressly exercised the powers of appointment conferred upon her by her husband's settlement above set forth, must be presumed to have intended to abstain from exercising her power over the moiety of the proceeds of the sale of Blackmount, here in question, of which no express appointment is made by her. But the burden is upon the pursuers, and I do not consider that there is any sufficient ground for holding that they have rebutted the general presumption already indicated. They referred to the case of Mackenzie v. Gillanders, 1 R. 1050. But that was a very peculiar case, and decided upon special grounds, as was observed by the learned Judges in Clark's Trustees, 21 R. 546. A sufficient, if not the principal ground of judgment appears to be that stated by Lord Ardmillan thus (1 R., at p. 1055)—‘ The power was peculiar. It was not power to dispose of a specified sum, but of a sum of £2000, to the extent of £1000. She might dispose of £20, or £500, or £1000. She has not expressed her will on that subject, which I think she would have done if she had intended to exercise such a power.' Upon the whole matter, therefore, I hold that the power of appointment here in question was validly exercised by Mrs Bruce, and I shall sustain the pleas stated by the defenders to that effect.

The pursuers reclaimed.

The case was argued before the Judges of the Second Division in December 1004, and was thereafter sent for rehearing to a bench of Seven Judges. The arguments of the parties are sufficiently indicated in the opinions infra, particularly those of Lords Kyllachy, Storinonth Darling, and Low. The following authorities were cited— Cameron v. Mackie, August 20, 1833, 7 W. & S. 106, Lord Brougham at p. 141; Hyslop v. Maxwell's Trustees, February 11, 1834, 12 S. 413; Dalgleish's Trustees v. Young, June 20, 1803, 20 R. 904, 30 S.L.R. 802: Clark's Trustees v. Clark's Executors, February 16, 1804, 21 R. 546. 31 S.L.R. 430; M'Tavlsh's Trustees v. Ogston's Executors, March 10, 1003, 5 F. 641, 40 S.L.R. 458; Tarratt's Trustees v. Hastings, July 7, 1004, 6 F. 968, 41 S.L.R. 738; Cunninghame v. M'Leod, August 13, 1846, 5 Bell's App. 210; Mackenzie v. Gillanders, June 10,1874, 1 R. 1050, 11 S.L.R. 612; Whyte v. Murray, November 15, 1888, 16 R. 95, 26 S.L.R. 67.

At advising—