Crum-Ewing and Others (Lord and Lady Inverclyde's M.-C. Trustees) v. Lord Inverclyde and Others [1909] ScotLR 1062 (24 June 1909)

Crum-Ewing and Others (Lord and Lady Inverclyde's M.-C. Trustees) v. Lord Inverclyde and Others [1909] ScotLR 1062 (24 June 1909)

The first Lord Inverclyde did not validly exercise the power of appointment under the marriage contract, as he went beyond the permitted terms by allowing the child to restrict the interest of his own issue. Therefore, the default provisions of the marriage contract applied, entitling the second Lord Inverclyde to a...

Source-derived case information.

Citation
[1909] ScotLR 1062
Parties
First Parties: Alexander Crum-Ewing and others (the first Lord Inverclyde's marriage-contract trustees); Second Parties: the second Lord Inverclyde and others (the first Lord Inverclyde's testamentary trustees); Third Parties: the third Lord Inverclyde (the second son of the first Lord Inverclyde), his children, and his three sisters; Fourth Parties: Mary Baroness Inverclyde (widow of the second Lord Inverclyde) and others; Fifth Parties: Mary Baroness Inverclyde and the Merchants' House, Glasgow (the charity favoured under the will of the second Lord Inverclyde); Sixth Party: Mary Baroness Inverclyde
Jurisdiction
Scotland
Judgment Date
24 June 1909
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment
Outcome
The Court answered the first, second (alternative), and fourth questions in the negative, and the fifth in the affirmative. The third and sixth questions were superseded.
Legal Topics
Faculties and Powers, Power of Appointment, Invalid Exercise of Power, Restriction of Fiar's Interest to Liferent, Election, Approbate and Reprobate
Succession Trusts and Estates Faculties and Powers Power of Appointment Invalid Exercise of Power Restriction of Fiar's Interest to Liferent Election Approbate and Reprobate

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Parties

Alexander Crum-Ewing and others (the first Lord Inverclyde's marriage-contract trustees)

First Parties

the second Lord Inverclyde and others (the first Lord Inverclyde's testamentary trustees)

Second Parties

the third Lord Inverclyde (the second son of the first Lord Inverclyde), his children, and his three sisters

Third Parties

Mary Baroness Inverclyde (widow of the second Lord Inverclyde) and others

Fourth Parties

Mary Baroness Inverclyde and the Merchants' House, Glasgow (the charity favoured under the will of the second Lord Inverclyde)

Fifth Parties

Mary Baroness Inverclyde

Sixth Party

Procedural Posture

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

Legal Issues

  1. 1 Whether the first Lord Inverclyde validly exercised the power of appointment under the marriage contract regarding the sums of £13,000 and £5,000.
  2. 2 Whether the deed of directions of 1877 validly exercised the power of appointment regarding the sums of £10,000 and £3,000.
  3. 3 Whether the second Lord Inverclyde's interest was validly restricted to a liferent and the fee disposed of as provided.

Ratio Decidendi

The first Lord Inverclyde did not validly exercise the power of appointment under the marriage contract, as he went beyond the permitted terms by allowing the child to restrict the interest of his own issue. Therefore, the default provisions of the marriage contract applied, entitling the second Lord Inverclyde to a share of the fee. However, the testamentary settlement required the second Lord Inverclyde to elect between the marriage contract rights and the testamentary provisions, and by accepting the latter, he or his representatives were precluded from claiming under the marriage contract.

Court Disposition

The Court answered the first, second (alternative), and fourth questions in the negative, and the fifth in the affirmative. The third and sixth questions were superseded.

Orders

  • The first Lord Inverclyde did not validly exercise the power of appointment as to the sums of £13,000 and £5,000.
  • The second Lord Inverclyde or his representatives were required to elect between rights under the marriage contract and the testamentary settlement, and by accepting the latter, were precluded from claiming under the marriage contract.