Potter's Trustees v. Allan and Others [1918] ScotLR 229 (11 January 1918)

Potter's Trustees v. Allan and Others [1918] ScotLR 229 (11 January 1918)

The £500 bequest to Mary Wordie Allan was not revoked by the third codicil and vested at the testator's death. The power of apportionment among Mrs Allan and her children includes children born after the testator's death. Beneficiaries are not entitled to demand payment of the share of residue; payment and apportionment are at the trustees' discretion. The trustees' power to delegate apportionment to nominees is not invalid on the facts of this case.

Citation
[1918] ScotLR 229
Parties
First Parties (trustees): William Smith Storie and another, as trustees acting under a deed of nomination and conveyance by the testamentary trustees of James Potter of Glenfuir, Falkirk; Second Party (beneficiary): Mrs Janet Wilson Potter or Allan, widow of the deceased Andrew Allan, solicitor, Falkirk, and a daughter of James Potter; Third Parties (beneficiaries): Robert Andrew Craig Allan, Elizabeth Craig Allan, and Janet Evelyn Allan, the surviving children of the second party
Jurisdiction
Scotland
Judgment Date
11 January 1918
Procedural Posture
Special Case (court of Session, Scotland) / Judgment (inner House, First Division)
Outcome
First question answered in the negative (bequest not revoked); second question in the affirmative (legacy vested); fourth question (b) in the affirmative (trustees may retain fund and include post nati); other questions not answered as unnecessary.
Legal Topics
Construction of Testamentary Documents, Revocation of Bequests, Powers of Apportionment, Delegation of Trustee Powers, Vesting of Legacies
Succession Trusts Construction of Testamentary Documents Revocation of Bequests Powers of Apportionment Delegation of Trustee Powers Vesting of Legacies

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Parties

William Smith Storie and another, as trustees acting under a deed of nomination and conveyance by the testamentary trustees of James Potter of Glenfuir, Falkirk

First Parties (trustees)

Mrs Janet Wilson Potter or Allan, widow of the deceased Andrew Allan, solicitor, Falkirk, and a daughter of James Potter

Second Party (beneficiary)

Robert Andrew Craig Allan, Elizabeth Craig Allan, and Janet Evelyn Allan, the surviving children of the second party

Third Parties (beneficiaries)

Procedural Posture

Special Case (court of Session, Scotland) / Judgment (inner House, First Division)

Legal Issues

  1. 1 Whether the £500 bequest to Mary Wordie Allan was revoked by the third codicil
  2. 2 Whether children born after the testator's death are included as objects of the power of apportionment
  3. 3 Whether beneficiaries are entitled to demand payment of the share of residue

Ratio Decidendi

The £500 bequest to Mary Wordie Allan was not revoked by the third codicil and vested at the testator's death. The power of apportionment among Mrs Allan and her children includes children born after the testator's death. Beneficiaries are not entitled to demand payment of the share of residue; payment and apportionment are at the trustees' discretion. The trustees' power to delegate apportionment to nominees is not invalid on the facts of this case.

Court Disposition

First question answered in the negative (bequest not revoked); second question in the affirmative (legacy vested); fourth question (b) in the affirmative (trustees may retain fund and include post nati); other questions not answered as unnecessary.

Orders

  • Trustees are entitled to retain the share of residue and exercise discretion as to payment and apportionment among Mrs Allan and all her children, including those born after the testator's death.