Mackenzie's Trustees v. Kilmarnock's Trustees and Others [1908] ScotLR 217 (04 December 1908)

Mackenzie's Trustees v. Kilmarnock's Trustees and Others [1908] ScotLR 217 (04 December 1908)

The power of appointment was validly exercised in favour of Lady Kilmarnock and Sir Victor Mackenzie. However, the appointees did not acquire a right of fee, but only a liferent with a testamentary power of disposal, as the power of disposal was limited to testamentary acts and not absolute. The unappointed capital of the trust fund is to be divided equally among the four children of Sir Allan Mackenzie.

Citation
[1908] ScotLR 217
Parties
First Parties: Mackenzie's Trustees; Second Parties: Kilmarnock's Trustees; Third Party: Lady Kilmarnock; Fourth Party: Sir Victor Mackenzie; Fifth Parties: Allan Keith Mackenzie and Eric Dighton Mackenzie; Sixth Parties: Trustees under the trust-disposition and settlement of Sir James Thompson Mackenzie
Jurisdiction
Scotland
Judgment Date
04 December 1908
Procedural Posture
Special Case (trust/succession) / Judgment of the Inner House, First Division
Outcome
Power of appointment validly exercised; appointees entitled to liferent with testamentary power of disposal; unappointed capital divisible equally among four children; immediate payment not ordered.
Legal Topics
Liferent and Fee, Power of Appointment, Testamentary Power of Disposal, Division of Trust Fund, Marriage Contract Trusts
Succession Trusts Liferent and Fee Power of Appointment Testamentary Power of Disposal Division of Trust Fund Marriage Contract Trusts

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Parties

Mackenzie's Trustees

First Parties

Kilmarnock's Trustees

Second Parties

Lady Kilmarnock

Third Party

Sir Victor Mackenzie

Fourth Party

Allan Keith Mackenzie and Eric Dighton Mackenzie

Fifth Parties

Trustees under the trust-disposition and settlement of Sir James Thompson Mackenzie

Sixth Parties

Procedural Posture

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

Legal Issues

  1. 1 Whether the power of appointment was validly exercised in favour of Lady Kilmarnock and Sir Victor Mackenzie
  2. 2 Whether the appointees acquired a right of fee or only a liferent with testamentary power of disposal
  3. 3 How the unappointed capital of the trust fund should be divided

Ratio Decidendi

The power of appointment was validly exercised in favour of Lady Kilmarnock and Sir Victor Mackenzie. However, the appointees did not acquire a right of fee, but only a liferent with a testamentary power of disposal, as the power of disposal was limited to testamentary acts and not absolute. The unappointed capital of the trust fund is to be divided equally among the four children of Sir Allan Mackenzie.

Court Disposition

Power of appointment validly exercised; appointees entitled to liferent with testamentary power of disposal; unappointed capital divisible equally among four children; immediate payment not ordered.

Orders

  • Questions 1(a), 2(a), and 2(b) answered in the affirmative: valid appointments to Lady Kilmarnock and Sir Victor Mackenzie.
  • Unappointed capital and income divisible equally among the four children of Sir Allan Mackenzie.