Kenneth (Shedden's Trustee) v. Dykes and Others [1913] ScotLR 115 (19 November 1913)

Kenneth (Shedden's Trustee) v. Dykes and Others [1913] ScotLR 115 (19 November 1913)

The assumed trustee is entitled to exercise the discretionary powers conferred by the testatrix, as the will and statutory law provide for assumption of trustees and do not indicate an intention to confine such powers to the original trustee(s) only. The powers are conferred on 'my trustees' generally, not on named individuals exclusively, and the residue does not fall into intestacy.

Citation
[1913] ScotLR 115
Parties
First Party (applicant/assumed Trustee): William Kenneth (Shedden's Trustee); Second Party (respondent/next of Kin): Mrs Margaret Shedden or Dykes (with Rev. Thomas Dykes, D.D.); Third Parties (beneficiaries): Royal Hospital for Sick Children, Glasgow (and honorary treasurer)
Jurisdiction
Scotland
Judgment Date
19 November 1913
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment on Questions of Law Regarding Trust Powers and Residue Allocation
Outcome
Assumed trustee entitled to exercise discretionary powers; residue does not fall into intestacy.
Legal Topics
Discretionary Powers of Trustees, Delectus Personae, Assumption of Trustees, Construction of Wills, Intestacy
Trusts and Estates Charity Law Discretionary Powers of Trustees Delectus Personae Assumption of Trustees Construction of Wills Intestacy

Case Brief

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Parties

William Kenneth (Shedden's Trustee)

First Party (applicant/assumed Trustee)

Mrs Margaret Shedden or Dykes (with Rev. Thomas Dykes, D.D.)

Second Party (respondent/next of Kin)

Royal Hospital for Sick Children, Glasgow (and honorary treasurer)

Third Parties (beneficiaries)

Procedural Posture

Special Case (court of Session, Inner House, First Division) / Judgment on Questions of Law Regarding Trust Powers and Residue Allocation

Legal Issues

  1. 1 Whether an assumed trustee is entitled to exercise discretionary powers conferred by a testatrix on original trustees under a will
  2. 2 Whether the residue of the estate falls into intestacy if the original trustee dies without exercising discretionary powers

Ratio Decidendi

The assumed trustee is entitled to exercise the discretionary powers conferred by the testatrix, as the will and statutory law provide for assumption of trustees and do not indicate an intention to confine such powers to the original trustee(s) only. The powers are conferred on 'my trustees' generally, not on named individuals exclusively, and the residue does not fall into intestacy.

Court Disposition

Assumed trustee entitled to exercise discretionary powers; residue does not fall into intestacy.

Orders

  • Branch (a) of the second question of law answered in the affirmative: the assumed trustee may exercise the discretionary powers as to residue.
  • Branch (b) of the second question answered in the negative: the residue does not fall into intestacy.