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Execution of a power.

Execution must accord with the

terms of the power.

marriage so as to make the objects of the power the issue,1 and not the children only of the marriage. When this is the case, provision can be made for the issue of a deceased child, or of a child who has become bankrupt or alienated his interest under the contract.

Such a power is intended for the purpose of apportioning the fund fairly amongst the beneficiaries according to their needs, and may sometimes be used for protecting the interests of an insolvent beneficiary, or at least for keeping the fund in the family.

§ 128. It is not necessary by our law that in executing a power it should be specially recited or referred to. The power must, however, be exercised. It is not sufficient to refer to it merely.2 Any deed which effectually expresses the will of the donee is sufficient, even although its primary purpose is different and the execution of the power is merely incidental. An instrument which professes to be an execution of a power is to be held to be so, unless it is shown that it is not. The power may be executed from time to time by several appointments, to suit convenience and promote advantage, as exigencies arise or as expediency may suggest.


§ 129. The donee of the power must execute it in accordance with its terms. He cannot go beyond these."


In Scotland "issue" is used in a more general sense. Young's

Trustees v. M'Nab, 13 July, 1883, 10 R. 1165.


Whyte v. Murray, 16 Nov. 1888, 16 R. 95.

3 Hyslop v. Maxwell's Trustees, 11 Feb. 1834, 12 S. 413; Bowie's Trustees v. Paterson, 16 July, 1889, 16 R. 983.

4 M'Leod v. Cunninghame, 20 July, 1841, 3 D., at p. 1307; 5 Bell App. 252, 257; Cuninghame v. Anstruther, 1872, L.R. 2 Sc. App. 223. 6 Cuninghame v. Anstruther, supra.

6 Supra, § 127; Bell, Pr., 1971; Reid's Trustees v. Reid, 17 May, 1879, 6 R. 916; See per Lord Benholme, in M'Donald's Trustees v. M'Donald, infra.

times it is attempted to hamper the gift, made by such execution, with conditions or limitations. If these cannot be disconnected from the gift, then the gift itself may be found to be involved in conditions so much beyond the power that it becomes void. If, however, the gift and the conditions. are separable the former will stand, although the superadded directions and conditions are ultra vires.1

In executing a power of division or appointment, care must be taken that it does not offend against the statutory rules against perpetuities presently to be explained.2

bargain with

§ 130. A parent in whom a power is vested, by a contract Parent cannot of marriage or similar deed, to divide funds amongst his his children. children, cannot deal or negotiate with them in executing the


power. It is otherwise as regards contingent claims under a spes successionis, or an interest under a jus crediti, where the father is not executing a power.*


Schemes for


§ 131. Various conveyancing devices are resorted to for protection of protecting, as far as possible, the provisions made under contracts of marriage against the contingency of the bankruptcy of a provisee or of his improvidence; and practically the same rules are followed in reference to beneficiaries under testamentary deeds. Some of the expedients in common use may therefore be considered before turning to the subject of bankruptcy itself.

§ 132. The object of all such arrangements is to allow as full object of such

1 M'Donald's Trustees v. M'Donald, 10 March, 1874, 1 R. 794; revd.

1875, L.R. 2 Sc. App., 482.

2 Infra, § 145 et seqq.

3 Cuninghame v. Anstruther, supra; M'Donald v. M'Grigor, 10 March, 1874, 1 R. 817.

4 Duff, Treatise on Deeds, p. 216; Brodie's Stair, p. 556 n.


Prohibition against alienation.

enjoyment as may be of the provision, and yet to vest in the provisee no right which can be carried off by his creditors. While this is the end to be attained, it is to be kept clearly in view that it is impossible to give any person the absolute control of property, and at the same time to limit his power of alienation or the right of his creditors to attach it. The liability of property to be attached by creditors upon bankruptcy or in the course of diligence is an incident of property, and no attempt to deprive it of that incident by direct prohibition will be effectual except under the Entail Acts. It would be void and inoperative on the ground of repugnancy.1

At common law a prohibition against altering the succession to heritage, or even against alienation and contracting debt, is probably valid inter haeredes, in so far as regards gratuitous deeds, if a jus crediti is created in the substitutes under the destination.2 This is in effect a tailzied succession, although not protected by the Act of 1685; but such deeds are struck at by the Rutherfurd Act,3 and land can

See per

1 Logan's Trustees v. Ellis, 7 Feb. 1890, 17 R. 425. Campbell, L.P., in M'Nair v. M'Nair, 1791, M. 16,210, 5 W. and S., at p. 190 n.; Bell's 8vo. Cases, 546. This was an extraordinary will, It created a perpetual trust; and amongst other things, quarterly meetings of all the descendants, in all time coming, are enjoined to be held for examining the transactions of the trustee. See also Mackenzie, Select Pleadings, p. 40 (Edinburgh, 1673, 410). The jus disponendi is implied in dominium. Unusquisque est rei suæ moderator et arbiter.

2 Craig, 2. 16; Buchanan v. Carrick, 25 Jan. 1838, 16 S. 358, remitted 30 May, 1842, 1 Bell's App. Ca. 368, aff. 5 Sept. 1844, 3 Bell's App. Ca. 342; Lindsey v. Oswald, 11 Dec. 1863, 2 M. 249, aff. 21 March, 1867, 5 M. (H.L.), 12; S.C. L.R., 1 Sc. App. 99; see per Lord Brougham in Grahame v. Grahame, 1831, 5 W. and S., p. 765, et seqq. Per Lord Balgray in the Ascog Case, 4 W. and S., App. i., p. v. et seqq.

3 It has been held that anything short of what is required to constitute an effectual entail under the Act 1685, c. 22, is struck at by § 43 of the Rutherfurd Act (11 and 12 Vict. c. 36); Cunyngham v. Cunyngham, 9 March, 1852, 14 D. 636; Dewar v. Dewar, 20 July, 1842, 14 D.

only now be protected, even inter haeredes, by a valid deed under the former Act. The Rutherfurd Act likewise (sec. 47) provides that when heritable property (sec. 52) in Scotland is, by virtue of any testamentary or other trust deed dated after 1st August, 1848, in possession either directly or through trustees of a person of full age born after the date of such deed, he is not affected by any prohibitions in the deed or by any limitations regulating the succession or restricting or abridging his possession in favour of any future heir, and that he shall be deemed and taken to be the fee-simple proprietor of such property.

Life interest of heir of entail not

§ 133. Although an entail, either at common law or under the statute, preserves the corpus of the estate, and passes it protected. intact to the next heir, it does not protect the interest of the person in possession. He is restrained from injuring the interests of the next heir, but he may do with his own as he thinks proper; and the alienation of the life interest of an heir of entail is unfortunately a transaction that is only too frequent. A liferent under a trust is in the same position. If anyone has an absolute liferent, he can do with it as he pleases. It can be attached by his creditors, and if he is sequestrated it vests in the trustee for the creditors.

interest declared

§ 134. The protection that can be afforded to provisions is Beneficiary's dependent upon the restriction of the beneficiary's interest. alimentary. Instead of an absolute right, a limited right only is conferred

1062; Ferguson v. Ferguson, 18 Nov. 1852, 15 D. 19; Cathcart v. Cathcart, 31 March, 1863, 1 M. 759.

It is sufficient now that the deed contains an express clause authorizing registration in the Register of Tailzies, 31 and 32 Vict c. 101, $ 14.

1 Hamilton v. Hamilton, 20 Nov. 1868, 7 M. 139, aff. 8 M. (H.L.) 48 ; S.C. L.R., 2 Sc. App. 12.

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upon him, and that limited right is again given for a special purpose, that is, for his alimentary use.


If this is properly expressed 1 the provision is not, in so far as it is alimentary, attachable by creditors, except alimentary creditors; it does not pass to a trustee upon sequestration and cannot be assigned or anticipated by the provisee. It corresponds, to a certain extent, with the English scheme of restraint upon anticipation, but that restraint is allowed only in the case of a married woman, and will not be upheld in the case of an equitable limitation in favour of a man.3 In Scotland, on the other hand, a declaration that a fund is alimentary applies equally in the case of a man as of a woman, of a husband as well as of a wife.

§ 135. It is not enough to declare that a provision shall be deemed to be alimentary. The interest of the provisee must be in some way limited and machinery be provided for maintaining the limitation. This may be illustrated by cases under testamentary deeds. Thus, if a father directs his trustees to pay a certain sum, or a certain proportion of his estate to one of his sons, and adds that the bequest "shall be strictly alimentary and shall not be affectable by his debts, or deeds, or by the diligence of his creditors," this will not protect the

1 See Rogerson v. Rogerson's Trustee, 6 Nov. 1885, 13 R. 154; Craig v. Ferguson and others, 3 July, 1884, 11 R. 1038.

2 Rennie v. Ritchie, 1845, 4 Bell App. Ca. 221, 12 Cl. and F. 204. The restraint may be imposed not only upon the income but upon the corpus of real and personal estate. Baggett v. Meux, 1 Coll. 138, 149; Re Ellis' Trusts, L.R. 17 Eq. 409, 412, 414.

3 Brandon v. Robinson, 18 Ves. 429. Per Cotton, L.J., in Corbett v. Corbett, L.R. 14 P.D. at p. 11.

4 See Cosens v. Stevenson, 26 June, 1873, 11 M. 761; Craig v. Ferguson and others, supra, § 134.

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