(Court of session Inner House Second Division) Section 27 of the English Wills Act 1837, which provides that ‘a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have a power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will,’ held to be a correct expression of the law of Scotland. Lord Brougham’s dictum as to the law of Scotland in Cameron v. Mackie, August 29, 1833, 7 W. and S. p. 106, at p. 141, on which the above section is founded, approved.
Opinion per Lord Low that the presumption in favour of the exercise of the power can be rebutted only by evidence of intention amounting practically to a declaration that the power is not exercised.
A testator conveyed his whole means and estate, heritable and moveable (except the estate of X to be settled in the fourteenth place), to trustees for various purposes, including fourth, division of furniture among A, B, C, grandnieces of wife failing exercise by wife of power of appointment conferred on her; eighth, liferent of whole income to wife; twelfth, on death of wife if she survived him, payment of residue of moveable estate as appointed by her, or, failing appointment, equally among grandnieces A, B, C; fourteenth, as regarded estate of X, on death of wife sale of estate and payment of proceeds as she might appoint, or, failing appointment, division among certain relatives of wife from whom A, B, C, otherwise provided for, were excluded. By her will the wife, after expressly exercising the power of appointment as to furniture, provided, ‘as regards the remainder of my means and estate I provide’ that the residue be divided between her grandnieces A and B (C had died) in the proportion of two-thirds to A and one-third to B. By subsequent codicil she expressly exercised the power of appointment over the residue of her husband’s moveable estate in favour of A and B.
Held (dub. Lord Stormonth Darling) that the power of appointment conferred on the wife by purpose fourteen as regarded the proceeds of the sale of X, had been validly exercised by her will in favour of A and B.
Lord Dundas, Ordinary
[1906] SLR 43 – 746
Bailii
Scotland
Wills and Probate
Updated: 13 January 2022; Ref: scu.610383