Scottish Court of Session Decisions

On 1st March 1922 Miss Mary Anderson Snodgrass, Dowanhill, Glasgow, presented a petition to the Second Division in which she craved the Court in virtue of its nobile officium to giant authority to Dr David Murray, writer, Glasgow, and herself, the sole remaining trustees under the trust-disposition and settlement and codicils of the late John Snodgrass, grain miller, Glasgow, to make payment to her (the petitioner) of a legacy amounting to £13,500.

The petition stated—“1. John Snodgrass, grain miller, Glasgow (hereinafter called the testator'), died on or about 5th February 1896 leaving a trust-disposition and settlement dated 12th August 1880, and with four codicils thereto, dated respectively 6th June 1882, 11th November 1881, 4th June 1888, and 31st March 1892, registered in the Books of Council and Session 13th June 1896. 2. By said trust-disposition and settlement the testator assigned and disponed to and in favour of his son James Fullarton Snodgrass, grain miller, Glasgow, and his heirs and assignees whomsoever, all and sundry his whole means and estate.… 3. One of the provisions in the said trust-disposition and settlement, subject to which the testator assigned and disponed his means and estate to the said James Fullarton Snodgrass, was payment by the said James Fullarton Snodgrass as soon as was convenient for him but not later than seven years from the date of the testator's death, with interest on so much as might be from time to time unpaid at the rate of 5 per cent. per annum from the date of the testator's death until payment, to the petitioner, whom failing to her children equally among them if more than one, of a legacy of £13,500. 4. By said trust-disposition and settlement the testator, inter alia, provided and declared that the said legacy of £13,500 should form a real lien and burden upon his heritable estate, and that the same should not be paid to the petitioner but to John Snodgrass, a son of the testator, and to the said James Fullarton Snodgrass and David Murray, writer, Glasgow, and the acceptors and acceptor and survivors and survivor of them (a majority so long as there were more than two trustees being a quorum) as trustees, to be held by them in trust for behoof of the petitioner in liferent and of her children in such proportions, on such conditions, and under such restrictions and limitations as she might appoint by any writing whether testamentary or otherwise under her hand, which failing equally among them, and failing children for such person or persons or for such purpose or purposes as the petitioner might appoint by any such writing as aforesaid, which also failing for behoof of the petitioner's nearest heirs whomsoever in fee. 5. By said codicil dated 11th November 1884 the testator, inter alia, provided and declared in the event of the petitioner predeceasing him, or in the event of her surviving him but failing to exercise the power of division conferred upon her by

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said trust-disposition and settlement, that the said legacy of £13,500 should be payable to such children in the event of sons when they respectively attained the age of twenty-one years, and in the case of daughters when they respectively attained that age or were married, whichever of these events should first happen, and should vest in them respectively as at the term of payment, and that in the event of any of such children dying before the said term of payment without leaving issue the share of such deceaser should fall to and be divided equally among the survivors and survivor of his or her brothers and sisters jointly with the issue of any of them who might have predeceased leaving issue, such issue succeeding equally to the shares to which their parent would have been entitled if in life.… 9. The said sum of £13,500 was duly paid over by the said James Fullarton Snodgrass to himself and the said David Murray as trustees foresaid, and they continued to hold it until 24th January 1902, when they assumed the petitioner as a trustee under said trust-disposition and settlement and codicils, conform to deed of assumption and conveyance dated 24th January and registered in the Books of Council and Session 1st February 1902. 10. The said James Fullarton Snodgrass died on or about 26th November 1916. The said David Murray and the petitioner are the sole remaining trustees under said trust-disposition and settlement and codicils, and continue to hold the said legacy of £13,500, represented by investments amounting in value to the sum of £13,368, 11s. 8d. as at 11th November 1921, in terms of said trust-disposition and settlement and codicils. 11. The petitioner has in virtue of the powers conferred on her by said trust-disposition and settlement appointed the said legacy of £13,500 represented as aforesaid to herself absolutely, and directed that the same be paid over to her as the person entitled thereto in virtue of said trust-disposition and settlement and odicils, conform to deed of appointment dated 17th February 1922. 12. The petitioner was born on 30th November 1862. She has never been married and has no children, and being fifty-nine years of age she is now past the age at which it is possible that she should have issue. She has reached an age beyond the utmost limit of authentically known childbearing, ordinary or extraordinary. She maintains that the restriction of her interest in the said legacy of £13,500 to a liferent was applicable only in the event of her having children, and that that event now having become impossible and having validly appointed the legacy to herself, she is now entitled to payment thereof. It is necessary, however, that the trustees should obtain judicial authority before making payment to her, and she submits that in the circumstances your Lordships should in the exercise of your nobile officium grant such authority. Such payment would not affect the interest of any living person except herself. 13. The petitioner is willing to find caution to make repetition in the event, which she avers is impossible, of a child being born to her, but in the whole circumstances she submits that the prayer of the petition should be granted without her being required to find caution.”

No answers having been lodged by the trustees, counsel for the petitioner was heard in the Single Bills on 12th and 13th May 1922.

Argued for petitioner—It was in the power of the Court in virtue of its nobile officium to grant the authority craved. The petitioner was past the age of childbearing. If any inquiry was necessary a proof should be allowed. The following authorities were cited:— Anderson v. Ainslie, 1890, 17 R. 337, 27 S.L.R. 276; Beattie's Trustees v. Meffan, 1898, 25 R. 765, 35 S.L.R. 580; Be la Chaumette's Trustees v. Dela Chaumette, 1902, 4 F. 745, 39 S.L.R. 524; Turnbull v. Turnbull's Trustee, 1907, 44 S.L.R. 843; Backstraw v. Douglas, 1917 S.C. 284, 54 S.L.R. 224; In re Dawson, (1888) L.R., 39 C. D. 155; In re Hocking, [1898] 2 Ch 567.