Scottish Court of Session Decisions

On 3rd December 1889 John Anderson, Denham Green, Edinburgh, placed on deposit-receipts in the names of his daughters Victoria and Alicia the sum of £1980, and delivered the deposit-receipts to them, one for £1200 with the Chartered Mercantile Bank of India, London, and China, and the other for £780 with the Commercial Bank of Scotland, Limited. He also handed to them a writing in the following terms:— “ Denham Green, Trinity, Edinr., 3 rd Dec. 1889.—Memorandum for the guidance of my daughters Victoria and Alicia in administrating the sums which I have recently placed in their names in trust for behoof of my son Archibald. The sums amount to £1980, being. £2000 less £20, remitted by me on the second instant to Archibald at Toronto, of which £1208 is on deposit with the Chartered Mercantile Bank of India, London, and China, and £780 on deposit with the Commercial Bank of Scotland. This money and any interest and dividends arising from it or any part of it I wish them to pay to or for behoof of Archibald, at such times and in such ways and sums as I may direct, and failing direction from me, at such times and in such ways and sums as they or the survivor of them may think proper. I recommend them to keep an account of how the money, principal and yield, is applied, but they are under no obligation to account for it to Archibald or any other person, and Archibald has no right to and cannot claim it or any part of it. Should the whole not be disposed of in the lifetime of Archibald, my said daughters may dispose of the balance in any way they should think proper. They may invest the funds in any way they like, and they shall not be responsible to any one for loss which may arise out of the investment.— John Anderson.”

On 5th May 1892 John Anderson died leaving a trust-disposition and settlement disposing of his whole property.

In July 1897 Archibald Anderson died leaving a last will and testament disposing of his whole estate. Down to the date of his death his sisters Victoria and Alicia had made payments to him from time to time out of the sum of £1980. At his death the sum still held by them in terms of their father's writing amounted to £1000 or thereby.

Disputes having arisen as to the person or persons to whom this sum of £1000 belonged, a special case for the settlement of the question was presented by (1) the two daughters; (2) Archibald Anderson's trustee; and (3) John Anderson's Trustees.

The question of law was—“To which of the parties hereto does the said sum of £1000 or thereby belong?”

Argued for the first parties—On the death of Archibald they became entitled to the £1000 absolutely, and were not

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bound to pay it either to the second or to the third parties. There was no direct gift to Archibald in the memorandum. They were entitled to the sum in terms of the instruction of the testator that after Archibald's death they might “dispose of the balance in any way they should think proper.” The cases quoted by the third parties were all cases of testamentary trusts in which property had been left to trustees and executors for the purposes of administration and distribution. The present was not a trust for distribution. The trust was only imposed as regards the amount spent for behoof of Archibald. The word “administrating” referred to Archibald's lifetime

Argued for second party—The sum in question was held in trust for Archibald by the first parties, and vested in him, subject to the power of administration conferred upon the first parties. Archibald had therefore power to test on the said sum, and it was effectually carried to the second party by Archibald's settlement. The direction that the trustees were after Archibald's death to dispose of the balance as they thought proper was repugnant to the gift which had been made to Archibald in the former part of the note, and must be held pro non scripto.

Argued for third parties—There was here no direct gift to Archibald, and the gift to the first parties was a trust, and not a power including ownership. The trust was of so indefinite a nature that it could not be carried into effect; it was void from uncertainty. The sum should therefore be handed over to them to administer as part of John Anderson's trust estate— Sutherland's Trustees v. Sutherland's Trustee, July 6, 1893, 20 R. 925; Fowler v. Garlike, 1830, 1 Russell & Mylne, 232; Ellis v. Selby, 1836, 1 Mylne & Craig, 286; Buckle v. Bristow, 1864, 10 Jurist (N.S.), 1095.