Burn's Trustees v McKenna [1940] ScotCS CSIH_4 (12 July 1940)

Burn's Trustees v McKenna [1940] ScotCS CSIH_4 (12 July 1940)

James Cleland Burns's purported exercise of the power of appointment was invalid because he attempted to appoint the fee to persons (great-great-grandchildren) who were not objects of the power and attempted to delegate the power to his children, which is not permitted. The restriction of the great-grandchildren to a liferent was not severable from the invalid appointment and thus also failed. The fourth parties (great-grandchildren) are entitled to the fee under the default provisions of Sir George Burns's will.

Citation
[1940] ScotCS CSIH_4
Parties
Applicant: Burns's Trustees; Respondent: M'Kenna; Claimant: Fourth Parties (children of James Cleland Burns); Opponent: Fifth Parties (children of Mrs Maclean of Ardgour, great-great-grandchildren of Sir George Burns)
Jurisdiction
Scotland
Judgment Date
12 July 1940
Procedural Posture
Civil / Appellate
Outcome
Appointment by James Cleland Burns declared invalid; fourth parties entitled to fee under default provisions.
Legal Topics
Power of Appointment, Delegation of Powers, Testamentary Dispositions, Liferent and Fee, Interpretation of Wills
Trusts and Estates Succession Law Power of Appointment Delegation of Powers Testamentary Dispositions Liferent and Fee Interpretation of Wills

Case Brief

Summary, issues, holding and outcome

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Parties

Burns's Trustees

Applicant

M'Kenna

Respondent

Fourth Parties (children of James Cleland Burns)

Claimant

Fifth Parties (children of Mrs Maclean of Ardgour, great-great-grandchildren of Sir George Burns)

Opponent

Procedural Posture

Civil / Appellate

Legal Issues

  1. 1 Whether James Cleland Burns validly exercised a power of appointment under Sir George Burns's will and codicils
  2. 2 Whether the appointment of fee to great-great-grandchildren (not objects of the power) is valid
  3. 3 Whether the restriction of great-grandchildren to liferent is valid or severable

Ratio Decidendi

James Cleland Burns's purported exercise of the power of appointment was invalid because he attempted to appoint the fee to persons (great-great-grandchildren) who were not objects of the power and attempted to delegate the power to his children, which is not permitted. The restriction of the great-grandchildren to a liferent was not severable from the invalid appointment and thus also failed. The fourth parties (great-grandchildren) are entitled to the fee under the default provisions of Sir George Burns's will.

Court Disposition

Appointment by James Cleland Burns declared invalid; fourth parties entitled to fee under default provisions.

Orders

  • First question answered in the negative: James Cleland Burns did not validly exercise the power of appointment.
  • Second question answered in the affirmative: The attempted exercise was invalid; fourth parties take the fee equally among them.