Crum Ewing's Trustees v. Bayly's Trustees and Others [1910] ScotLR 423 (28 January 1910)

Crum Ewing's Trustees v. Bayly's Trustees and Others [1910] ScotLR 423 (28 January 1910)

Mrs Bayly's exercise of the power of appointment was invalid; her will did not expressly or impliedly require her children to elect between taking under her will and claiming under their grandfather's will. The estates were separable, and no massing or condition of election was imposed regarding the grandfather's estate.

Citation
[1910] ScotLR 423
Parties
First Parties: Alexander Crum Ewing and another, testamentary trustees of the late Humphrey Ewing Crum Ewing of Strathleven; Second Parties: Rev. Paget Lambart Bayly and others, testamentary trustees of the late Mrs Jane Coventry Ewing Crum or Bayly; Third Party: Rev. Paget Lambart Bayly, as an individual; Fourth Parties: Mrs Helen Tolmie Dick Bayly or Douglas and others, daughters of Mrs Jane Coventry Ewing Crum or Bayly; Fifth Parties: Archibald John Angus Douglas and others, grandchildren of Mrs Jane Coventry Ewing Crum or Bayly
Jurisdiction
Scotland
Judgment Date
28 January 1910
Procedural Posture
Special Case (succession/trusts) / Inner House, First Division, Court of Session (final Judgment)
Outcome
Appeal dismissed; questions answered as follows: fourth in the affirmative, fifth (a) in the negative, (b) superseded.
Legal Topics
Power of Appointment, Approbate and Reprobate, Election by Beneficiaries, Invalid Exercise of Power, Testamentary Dispositions
Succession Trusts and Estates Power of Appointment Approbate and Reprobate Election by Beneficiaries Invalid Exercise of Power Testamentary Dispositions

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Parties

Alexander Crum Ewing and another, testamentary trustees of the late Humphrey Ewing Crum Ewing of Strathleven

First Parties

Rev. Paget Lambart Bayly and others, testamentary trustees of the late Mrs Jane Coventry Ewing Crum or Bayly

Second Parties

Rev. Paget Lambart Bayly, as an individual

Third Party

Mrs Helen Tolmie Dick Bayly or Douglas and others, daughters of Mrs Jane Coventry Ewing Crum or Bayly

Fourth Parties

Archibald John Angus Douglas and others, grandchildren of Mrs Jane Coventry Ewing Crum or Bayly

Fifth Parties

Procedural Posture

Special Case (succession/trusts) / Inner House, First Division, Court of Session (final Judgment)

Legal Issues

  1. 1 Whether Mrs Bayly validly exercised her power of appointment under her father's will
  2. 2 Whether her children are put to election between taking under her will and claiming under their grandfather's will

Ratio Decidendi

Mrs Bayly's exercise of the power of appointment was invalid; her will did not expressly or impliedly require her children to elect between taking under her will and claiming under their grandfather's will. The estates were separable, and no massing or condition of election was imposed regarding the grandfather's estate.

Court Disposition

Appeal dismissed; questions answered as follows: fourth in the affirmative, fifth (a) in the negative, (b) superseded.

Orders

  • Children of Mrs Bayly entitled to immediate payment of the capital of the one-third residue equally among them, share and share alike.
  • Children not bound to renounce rights of fee as a condition of enjoying further provisions under Mrs Bayly's will.