Darling's Trustees v. Johnston and Others [1909] ScotLR 394 (30 January 1909)

Darling's Trustees v. Johnston and Others [1909] ScotLR 394 (30 January 1909)

The appointments made by Margaretta and Jane Darling were invalid because (a) the appointees might not be within the class of descendants of the testator (objects of the power), and (b) the appointments postponed the period of division contrary to the terms of the trust. Therefore, the sums fell to be divided per stirpes among the testator's descendants at the time of the death of each liferentrix. The doctrine of bona fide perceptio et consumptio did not apply to the liferent paid in error.

Citation
[1909] ScotLR 394
Parties
First Parties: John Somerville Johnstone and Another (Trustees under William Darling's trust-disposition and settlement); Second Parties: Trustees under the trust-disposition and settlement of Margaretta Elizabeth Darling; Third Parties: Trustees under the trust-disposition and settlement of Jane Darling; Fourth Party: Mary Jane Roberton; Fifth Parties: Trustees under the ante-nuptial contracts of marriage for Mrs Rutherford, Mrs Harvey, Mrs Henderson, William Rutherford Darling, and the four minor children of Locke Rutherford Darling
Jurisdiction
Scotland
Judgment Date
30 January 1909
Procedural Posture
Special Case (succession/trusts) / Judgment of the Inner House, First Division
Outcome
Appointment invalid; division per stirpes among descendants; repayment of sums paid in error required.
Legal Topics
Exercise of Power of Appointment, Liferent and Fee, Invalid Appointment, Division Per Stirpes, Bona Fide Perceptio Et Consumptio
Succession Trusts and Estates Exercise of Power of Appointment Liferent and Fee Invalid Appointment Division Per Stirpes Bona Fide Perceptio Et Consumptio

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Parties

John Somerville Johnstone and Another (Trustees under William Darling's trust-disposition and settlement)

First Parties

Trustees under the trust-disposition and settlement of Margaretta Elizabeth Darling

Second Parties

Trustees under the trust-disposition and settlement of Jane Darling

Third Parties

Mary Jane Roberton

Fourth Party

Trustees under the ante-nuptial contracts of marriage for Mrs Rutherford, Mrs Harvey, Mrs Henderson, William Rutherford Darling, and the four minor children of Locke Rutherford Darling

Fifth Parties

Procedural Posture

Special Case (succession/trusts) / Judgment of the Inner House, First Division

Legal Issues

  1. 1 Whether the powers of appointment over the sums of £2000 were validly exercised by Margaretta Elizabeth Darling and Jane Darling
  2. 2 Whether the sums fell to be divided per stirpes among the descendants of William Darling at the relevant dates
  3. 3 Whether Jane Darling was entitled to a share of the capital of the sum liferented by Margaretta

Ratio Decidendi

The appointments made by Margaretta and Jane Darling were invalid because (a) the appointees might not be within the class of descendants of the testator (objects of the power), and (b) the appointments postponed the period of division contrary to the terms of the trust. Therefore, the sums fell to be divided per stirpes among the testator's descendants at the time of the death of each liferentrix. The doctrine of bona fide perceptio et consumptio did not apply to the liferent paid in error.

Court Disposition

Appointment invalid; division per stirpes among descendants; repayment of sums paid in error required.

Orders

  • The powers of appointment over the sums of £2000 were not validly exercised by Margaretta Elizabeth Darling or Jane Darling.
  • The sums of £2000 fell to be divided per stirpes among the descendants of William Darling at the date of each liferentrix's death.