United Kingdom House of Lords Decisions

This is an appeal against two interlocutors of the First Division of the Court of Session, pronounced in an action of multiplepoinding and exoneration, at the instance of the respondents, the testamentary trustees of the late Robert Ker, Esq., of Argrennan, in the stewartry of Kirkcudbright, against the trustees under the marriage settlement of Robert Ker, jun., Esq., and Miss Hester Rosetta M'Alpine. Those interlocutors decide certain questions of construction arising upon the trust-disposition of the late Mr Ker; and also upon the effect of the exercise by trustees of a discretionary power, upon their right to exercise relative discretionary power.

The late Robert Ker, Esq., of Argrennan, executed a disposition and deed of settlement, dated 23d September 1839, whereby he directed his trustees inter alia to hold his whole means and estate, with exception of a sum of £15,000, for the benefit of his eldest son Robert, and the heirs of his body, whom failing, of his second son, with remainder to his daughters according to seniority, and to make over such means and estate to his eldest son upon his attaining his majority, or in case of his death, to the person next entitled, upon his or her attaining the like age. The deed further provides that, “In case any of our said children shall marry, or otherwise conduct themselves, so as not to meet the approbation of my said trustees, or a majority of them accepting and surviving at the time, the provisions hereby made in favour of said children so marrying or acting, shall belong to them in liferent only, for their liferent use allenarly, and to their heirs or issue above-mentioned in fee; but it is hereby provided that a regular minute must be entered in the sederunt book of the trustees, expressing their disapprobation of the conduct of any said children, to restrict them to a liferent as aforesaid.” On the 26th of January 1847 Mr Ker executed a codicil to his will, whereby he directed his trustees that they should not convey to his eldest son Robert, or failing him, any other heirs-male or female of his body, his estate of Argrennan, or the residue of his means and estate, as he had directed by his disposition and deed of settlement to be done upon his or her attaining the age of twenty-one years, but should postpone such conveyance in the case of his son until he had reached the age of twenty-five years, and in the case of his eldest daughter, until she should have reached the age of twenty-eight years. The testator died on the 23d of March 1854, and the trustees he had nominated—viz., Mrs Elizabeth Ure or Ker, his widow; James Stewart, Esq., of Cairnsmore;

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David Maitland. Esq., of Barcaple; and the late Lord Handyside—proceeded to manage the trust, appointing Mr William Waddell, W.S., their factor and commissioner. In July 1858 Mr Robert Ker, the truster's eldest son, proposed marriage to Miss Elizabeth Hester Rosetta M'Alpine, the youngest daughter of James M'Alpine, Esq., of Windsor, in the county of Mayo, and a colonel in Her Majesty's service. Proposals for a marriage settlement on the part of Mr Ker were prepared by Mr Waddell (who was also agent for the late Mr Ker's trustees), and in these proposals Mr Ker stated that, with the consent of his father's trustees, he would convey his interest in the estate of Argrennan to trustees for himself in liferent and the heirs of his marriage in fee; that Miss M'Alpine should be provided with a jointure of £400 per annum out of the estate; and that the contingency of Mr Ker's dying before attaining the age of twenty-five years should be provided for by an insurance on his life. Miss M'Alpine was entitled at her marriage to a sum of £15,000 under her father's will, and it was agreed with reference to the proposed marriage that a deed in the English form should be executed, under which her fortune should be settled upon herself and her children with a liferent to Mr Ker. Considerable discussion ensued on the terms of their marriage contracts, but eventually Messrs Skene & Peacock, who acted as the lady's advisers, sent to Mr Waddell a draft of the proposed deed, accompanying it with a letter, in which they said— “We send you the draft for revisal on behalf of Mr Ker, his mother, and the late Mr Ker's trustees.” Mr Waddell, in a letter of subsequent date, said—“Mr Ker places the lady's jointure and the provisions for the children in such a position that no deed or act of his can ever deprive them of their rights,” and “I must remark that in all my experience I have never seen a case in which a gentleman gave such ample security for the provisions of his intended wife and the children of the marriage.” Messrs Skene & Peacock, aware of the discretionary power conferred on the late Mr Ker's trustees, to declare that Mr Ker jun. should be entitled to a liferent estate, suggested at first that those trustees should be parties to the marriage settlement, but this proposal being refused on their part by Mr Waddell, insisted that the trustees should at all events insert a minute in their sederunt book expressly approving of the marriage, and this was accordingly done. Mrs Ker, one of the trustees, was a party to the English deed, and as regards the Scotch deed, the only provision it contained, not already mentioned, was for the payment of Mr Robert Ker's debts as at the date of the marriage, the same being declared not to exceed the sum of £2000. These settlements having been executed, the marriage was duly solemnised on the 21st of September 1858 (Mr Ker being then twenty-three years of age) and there have been born, and are still surviving, two children of the marriage. In the interval between Mr Robert Ker junior's marriage and his attaining the age of twenty-five years—which he did on the 2d of July 1861—he granted various deeds purporting to aftect his rights and interests in his father's succession; and apparently, on that account, two out of the three surviving trustees under his father's settlement met in Mr Waddell's chambers on the 18th of June 1861—a fortnight before Mr Ker attained the age of twenty-five years—and by minute declared that they were unanimously of opinion that Mr Robert Ker had so conducted himself as to merit their strongest disapprobation, and that they therefore considered it their duty to restrict his interest in his father's means and estate to a liferent oniy. The deeds so granted were in particular—a security to Mr William Swanson, formerly of the Edinburgh Friendly Insurance Society, for the sum of £700; a similar security for the sum of £800 to Samuel Ghrimes, of Gloucester Place, Portman Square; and a second to the same person for the sum of £400; a disposition and conveyance in favour of Mr Walter Justice, solicitor, of Bernard Street, Russell Square, whereby Mr Ker conveyed to him the estate of Argrennan, and all the household furniture, silver plate, &c., which then belonged to him or might belong to him, and also his entire interest in the residue of his father's estate. Mr Justice alleges that in consideration of that conveyance he has paid Mr Ker £2000, discharged the debts due to Mr Ghrimes, and paid off a bond for £2100 held by Charles Henry Latouche, of St Paul's Churchyard. Mr Justice also alleges he is in right of a debt and security for £700, assigned to him by Mr William Swanson; the sum of £211 due upon a bill dated 19th July 1858, drawn by Mr Waddell, W.S., and accepted by Mr Robert Ker; a sum of £50, contained in Mr Ker's acknowledgment; a sum of £21, 9s. 7d., being the amount of sums advanced by Mr William Waddell, and a further sum of £194, 7s. 8d. due to the same gentleman. On the 15th of May 1861 Mr Justice borrowed the sum of £6500 from the Caledonian Insurance Company, in further security for which he assigned to them the securities granted in his favour by Mr Robert Ker.

Upon Mr Ker's attaining the age of twenty-five years, the trustees under his father's settlement were immediately applied to by the various claimants of his property, and they accordingly instituted an action of multiplepoinding and exoneration. In December 1861 Lord Kinloch, Ordinary, found that the trustees were only liable in once and single payment and delivery of the estate and effects in their hands, and appointed all parties having interests therein to lodge condescendences and claims. Condescendences were accordingly lodged for the trustees of the late Mr Ker (the respondents); for the trustees under the marriage settlement of Mr Ker junior (the appellants); for Mr Walter Justice; and for the Caledonian Insurance Company. On the 13th of February 1863 the Lord Ordinary found that Mr Robert Ker and all claiming under him were entitled only to a liferent estate in the property and funds in which he was interested. Against the interlocutor the appellants reclaimed to the First Division of the Court, but their Lordships (Lord Deas dissenting) adhered to the interlocutor of the Lord Ordinary.