Scottish Court of Session Decisions

Mr Edwin Sandys Bain of Easter Live-lands, Stirlingshire, died on 30th December 1874, and was survived by his wife and daughter and by the family of a deceased daughter. By a trust-disposition and settlement dated 30th December 1874 he made the following provision:—“That my trustees shall hand over and deliver free of charge to the said Mary Ann Horsman or Bain such articles of jewellery, linen, silver plate, books, and other household furniture belonging to me as she may choose to select for her own absolute use, and shall allow her and the said Charlotte Elizabeth Sandys Bain,” the truster's daughter, “and the longest liver of them, the free and uninterrupted liferent use of my mansion-house of Easter Livelands … and also such articles of household furniture, plate, pictures, including those painted in oil hereinafter mentioned, and plenishing of every description, which shall be found at the time of my death remaining after the said Mary Ann Horsman or Bain shall have made her selection as aforesaid, or the whole in case of no such selection being made.”

After the death of her husband Mrs Bain occupied Easter Livelands with her daughter Mrs Geddes, and continued to do so with short intervals till her death.

In 1875 Mrs Bain married Mr Macdonald, who died shortly afterwards.

In 1882 the mother and daughter executed a discharge in favour of Mr Bain's trustees, containing a formal acknowledgment of delivery of the furniture, &c., in the mansion-house at Easter Livelands in the following terms:—“And further considering that we have been allowed the use of the mansion-house of Easter Livelands, gardens and grass parks and offices, and of the cottages at Calton of Saint Ninians, and of the whole articles of jewellery, linen, silver plate, books, and other household furniture which belonged to the said Edwin Sandys Bain deceased, from which I, the said Mary Ann Macdonald, have hitherto refrained from making any selection, and that the said trustees have now delivered to us the said articles of jewellery, linen, silver plate, books, and other household furniture, except the paintings in oil before mentioned, which are in said mansion-house, and an inventory of which has been authenticated by the said trustees.”

Mrs Macdonald died in 1893, leaving a trust-disposition in which she bequeathed certain of the articles over which Mr Bain had left her a power of selection. An action was raised at the instance of Mrs Macdonald's trustees against Mr Bain's trustees and against Mrs Geddes for declarator, (1) that certain of the articles dealt with in Mrs Macdonald's will were her own property, and (2) that with regard to other articles admittedly belonging to the class over which she had a power of selection, she had “by her said trust-disposition and settlement made a valid and effectual selection.”

The Lord Ordinary ( Kyllachy) on 1st February 1896 found that the power of selection had not been validly exercised.

Note.—“This is an action raised by the trustees of the late Mrs Macdonald against the trustees of her first husband, the late Sergeant Bain, and the object of the action is to have it found that certain corporeal moveables purporting to be bequeathed by Mrs Macdonald's settlement were validly carried by her settlement, either (1) as being, some of them, her own property, or (2) as being property left by her husband over which she had under his settlement a power of selection, which power she duly exercised.

“The questions to be now decided are, I think, two—(1) Whether the power of selection conferred upon the widow could be exercised by will, and by simply disposing by will of particular articles; (2) Whether the power of selection extended to pictures, that is to say, to portraits and other pictures in oil belonging to Sergeant Bain. There is a third question, but it involves proof and cannot be now decided, viz., the question how far the articles disposed of by Mrs Macdonald's settlement were, apart altogether from her husband's settlement, her own separate property.

As to the power of selection, that power is conferred by a direction to Sergeant Bain's trustees to hand over and deliver to his widow free of charge ‘such articles of jewellery, linen, silver plate, books, and other household furniture belonging to me as she may choose to select for her own absolute use.’ And that direction was followed by a further direction by which

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the truster conferred upon his widow and daughter jointly a liferent of, inter alia, ‘such articles of household furniture, plate, and pictures as should be left after the testator's widow made her selection, or the whole in case of no such selection being made.’

At Sergeant Bain's death what happened was this—The widow made no selection either then or during her survivance, the whole articles remaining all along in possession of herself and her daughter; but on her death it appeared, as I have already explained, that she had bequeathed by will various of the articles in question to different relatives.

Now, I am not prepared to say that a power of this kind requires to be exercised expressly, or that the absence from the will of a reference to the power is material one way or the other. But the difficulty which the pursuers have to meet is, I think, twofold. In the first place, the power of selection being given for the widow's ‘use,’ albeit her ‘absolute use,’ is scarcely suggestive of a selection to take effect only at her death, and thus to operate, not in favour of the widow, but in favour of third parties. In the second place, the truster directs that any articles not selected should fall under the joint liferent, and the conclusion is obvious that if the selection by the widow might be postponed until her death and be made by will, any joint life-rent of the unselected articles was an impossibility. It appears to me, therefore, that the difficulties in the pursuers’ way are insuperable, and that I must find in terms of the defenders’ contention that the power of selection conferred on Mrs Macdonald was not validly exercised.

As to the pictures, if I am right in what I have said, the question is not material. But I am of opinion that Sergeant Bain did not intend that his widow should have any right of selection among his pictures. It may be that pictures will as a rule be carried by a bequest of household furniture. That is said to have been decided. But here I think any such presumption is overcome by the special and separate dispositions which Sergeant Bain made with respect to the pictures which he describes as his.

As to further procedure, I think the parties desire that having made the findings which I have indicated, I shall continue the cause in order that they may consider as to whether, and in what form, the necessary proof should he taken. If the parties desire proof on the question as to Mrs Macdonald's property in certain of these articles, they may have it, but if they see their way to adjust that matter I shall continue the cause to enable them to do so.”

The pursuers reclaimed, and argued—If no definite time limit were given within which the power of selection must be exercised, and there was nothing in the will inconsistent with delay, the power might be exercised at any time in the life of the donee. There was nothing in the present will inconsistent with that. She was en titled to take the whole of the articles for herself— Arthur v. Mackinnon, May 5,1879, L.R., 11 Ch. Div. 385, and the fact that she had lived on with her daughter in the enjoyment of them without making any formal selection, did not show that she renounced her right to do so. The only person having an interest to make her exercise this right formally was the daughter, and she did not do so. The discharge granted in favour of the trustees showed that Mrs Macdonald regarded her right as still existing at that time. The words “absolute use” which the Lord Ordinary thought created an insuperable difficulty in the pursuers' contention, meant nothing more than “absolutely,” i.e., that Mrs Macdonald was entitled to deal with the articles selected as she chose, by will or otherwise.

Argued for respondents—The terms of the will indicated clearly that the power must be exercised within a reasonable time of the testator's death. There must be some overt act of selection to indicate which articles were to be handed over by the trustees to the widow “for her absolute use,” and which were to be retained by her merely for her joint liferent. The alternative gift to her in joint liferent was quite inconsistent with the idea of her being able to exercise the power by will. The terms of the discharge only indicated that she had not exercised the power, and did not keep it alive. There was no analogy to a power of apportionment which might be validly exercised by a will.

At advising—