Mactavish's Trustees v. Ogston's Executors [1903] ScotLR 40_458 (10 March 1903)

Mactavish's Trustees v. Ogston's Executors [1903] ScotLR 40_458 (10 March 1903)

A general will, though executed before the power of appointment was conferred, is presumed to exercise such power if it speaks in universal terms and there is no evidence to the contrary. The will operates upon all rights and powers held at death, including subsequently conferred powers of appointment.

Citation
[1903] ScotLR 40_458
Parties
Applicant: Mactavish's Trustees; Respondent: Ogston's Executors
Jurisdiction
Scotland
Judgment Date
10 March 1903
Procedural Posture
Special Case (succession/trust) / Judgment of the Inner House, First Division
Outcome
First question answered in the affirmative; the will was a valid exercise of the power of appointment.
Legal Topics
Power of Appointment, Effect of General Will, Exercise of Testamentary Powers, Interpretation of Wills
Succession Trusts and Estates Power of Appointment Effect of General Will Exercise of Testamentary Powers Interpretation of Wills

Case Brief

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Parties

Mactavish's Trustees

Applicant

Ogston's Executors

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether a general will executed before the power of appointment was conferred can validly exercise that power under a subsequent trust-disposition
  2. 2 Whether Ogston's will operated as an exercise of the power of appointment conferred by Mactavish's trust-disposition

Ratio Decidendi

A general will, though executed before the power of appointment was conferred, is presumed to exercise such power if it speaks in universal terms and there is no evidence to the contrary. The will operates upon all rights and powers held at death, including subsequently conferred powers of appointment.

Court Disposition

First question answered in the affirmative; the will was a valid exercise of the power of appointment.

Orders

  • Ogston's executors are entitled under his will to payment of the capital of the share liferented by him under Mactavish's trust-disposition.