Scottish Court of Session Decisions

James Clark, thread manufacturer and merchant in Paisley, died on 3rd August 1881, leaving a trust-disposition and settlement dated 17th August 1880, and recorded 28th July 1881. He was survived by six sons and two daughters. By his trust-disposition and settlement he disponed and made over his whole means and estate to certain trustees, and directed them to pay an annuity to his wife and sundry bequests—“and (lastly) with regard to the residue of my means and estate, I direct my trustees to hold and apply, pay and convey, the same to and for behoof of all my children equally and their respective issue as follows, viz., one-half of the shares falling to sons to be paid and conveyed on my death to such of them as shall then be twenty-five years of age, and to such of them as shall not then have attained that age, on their respectively attaining the age of twenty-five years; and the other half of the shares falling to sons and the whole of the shares falling to daughters to be held and applied, paid, and conveyed to and for their behoof in liferent, for their respective alimentary uses only, and to and for behoof of their respective children per stirpes in fee: … Declaring, with regard to the shares

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of residue before directed to be held for behoof of my sons and daughters respectively in liferent, and their respective issue in fee, that in the event of any of my said children dying without leaving issue, or in the event of any of them dying leaving issue, but of such issue not surviving to take, in terms of the destination hereinbefore contained, then the share of the residue (whether original or as augmented by accretion) which may have been liferented by such child, shall devolve upon his or her surviving brothers and sisters, along with the issue of any brother or sister who may have deceased leaving issue, such issue always taking the share which their parent would have taken on survivance, but subject always such accretion, in as far as in favour of sons, to the extent of one-half thereof, and in as far as in favour of daughters to the whole extent thereof to the same liferent, and also to the same destination, declarations, and conditions in all respects as are herein contained with regard to the original shares of residue provided to them respectively in liferent, and their respective issue in fee.” He also provided and declared “that in the event of any of my sons or daughters dying without leaving issue, or of any of them dying leaving issue, but of such issue not surviving to take in terms of the destination hereinbefore contained, it shall be competent to him or her to test upon the share of residue (whether original or as augmented by accretion) that may have been liferented by him or her, and that in favour of such person or persons, or for such uses and purposes, and in such way and manner, all as he or she may think proper.”

One of the truster's sons James Alexander Clark died on 8th January 1893, aged thirty and unmarried. He was survived by two brothers and one sister, and by the children of two brothers and one sister who predeceased him. He left a holograph will dated 13th October 1892 and recorded 16th February 1893, whereby he provided thus—“And the residue and remainder of my real and personal estate I give, devise, and bequeath unto my brothers Kenneth Mackenzie Clark and Norman Clark equally, and I hereby appoint Kenneth Mackenzie Clark and Norman Clark, or the survivor of them, executors of this my will.”

James Alexander Clark never received any portion of his father's estate into his hands, although he drew the interest of the share liferented by him, and it was not admitted that he knew the terms of his father's will. At the time of his death he was entitled to one-eighth part of the residue, one-half in fee and one-half in liferent.

Questions having arisen regarding the effect of the holograph will as a valid exercise of the power of testing contained in James Clark's trust-disposition and settlement, a special case was presented by (1) the trustee under James Clark's settlement, and (2) the executors under James Alexander Clark's holograph will, for the opinion of the Court on the following Questions—“(1) Are the first parties entitled to retain and administer, as trustees of the said James Clark, the portion of the residue of the estate of the said James Clark liferented by the said James Alexander Clark? or (2) Are the first parties bound to pay to the second parties the portion of the residue of the estate of the said James Clark liferented by the said James Alexander Clark?”

The first parties argued—The holograph will was not a proper exercise of the power of testing. James Alexander Clark could only test upon what was actually in his estate, but the share liferented by him never was in his father's settlement. The terms under which it was given were too indefinite and more general than had ever been recognised before— Smith v. Milne, June 6, 1826, 4 S . 679; Dalgleish, June 29, 1893, 20 R. 904; Glen—donwyn v. Gordon, &c., May 19, 1873, 11 Macph. (H.L.) 33; Whyte v. Murray, November 16, 1888, 16 R. 95; Bowie's Trustees v. Paterson, July, 16, 1889, 16 R. 983. This case was not ruled by Hyslop v. Maxwell's Trustees, February 11, 1834, 12 R. 413, because in Hyslop's case there was no destination to children. It fell rather under the rule laid down in Mackenzie v. Gillanders, June 19, 1874, 1 R. 1050.

The second parties argued—The case of Hyslop v. Maxwell's Trustees had never been called in question, and was identical with the present in all material points. It was not necessary in exercising a power of testing which the testator possessed, to make mention of the deed which conferred the power— Grierson v. Miller, July 3, 1852, 14 D. 939. In a general settlement such as this, or in any deed, according to the law of Scotland, it must be presumed that a testator has exercised all the powers which he actually possessed, unless it be shown that his intention was otherwise— Cameron v. Mackie, August 29, 1833, 7 W. & S. 106.

At advising—