Hunter and Another (Montgomerie's Trustees) v. Alexanders [1911] ScotLR 761 (23 May 1911)

Hunter and Another (Montgomerie's Trustees) v. Alexanders [1911] ScotLR 761 (23 May 1911)

The marriage contract did not constitute a valid exercise of the power of appointment as the power did not exist at the date of the contract, and the provisions in favour of the husband's children were not contractual and were revoked by Mrs Alexander's subsequent settlement.

Citation
[1911] ScotLR 761
Parties
First Parties: Adam Hunter and others (Montgomerie's Trustees); Second Parties: James Cotton or Colin Montgomerie and others (Trustees under marriage contract); Third Parties: Andrew Snodgrass Muir Alexander and others (children of John Alexander by first marriage); Fourth Parties: James Burness and others (Trustees under Mrs Alexander's settlement); Fifth Party: James Cotton or Colin Montgomerie (as heir-at-law)
Jurisdiction
Scotland
Judgment Date
23 May 1911
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment on Questions of Law
Outcome
First question of law answered in the negative; second question answered in the affirmative.
Legal Topics
Power of Appointment, Marriage Contract, Revocability of Testamentary Provisions, Exercise of Powers Under Trust, Contractual Vs Testamentary Provisions
Succession Trusts Power of Appointment Marriage Contract Revocability of Testamentary Provisions Exercise of Powers Under Trust Contractual Vs Testamentary Provisions

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Parties

Adam Hunter and others (Montgomerie's Trustees)

First Parties

James Cotton or Colin Montgomerie and others (Trustees under marriage contract)

Second Parties

Andrew Snodgrass Muir Alexander and others (children of John Alexander by first marriage)

Third Parties

James Burness and others (Trustees under Mrs Alexander's settlement)

Fourth Parties

James Cotton or Colin Montgomerie (as heir-at-law)

Fifth Party

Procedural Posture

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

Legal Issues

  1. 1 Whether the share in question falls to be paid over to the marriage contract trustees for the benefit of the husband's children by a former marriage
  2. 2 Whether the share in question falls to be paid over to Mrs Alexander's testamentary trustees

Ratio Decidendi

The marriage contract did not constitute a valid exercise of the power of appointment as the power did not exist at the date of the contract, and the provisions in favour of the husband's children were not contractual and were revoked by Mrs Alexander's subsequent settlement.

Court Disposition

First question of law answered in the negative; second question answered in the affirmative.

Orders

  • The share in question is to be paid over to Mrs Alexander's testamentary trustees (fourth parties).