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Power of

withdrawal of

portion of

the settle


The conditions to be observed in order to render a postnuptial contract binding, in a question with creditors, will be considered in the next chapter.1



125. As the tying up of a wife's whole property, present Property from and future, is often productive of inconvenience, power is sometimes given to her to withdraw a specified portion from the trust, so that she may have it at her own disposal. power may be absolute, or it may be conditional upon her being the survivor of the spouses, or being the survivor and being about to re-marry, or it may be dependent upon the number of the children of the marriage, or other circumstances.


of interests on

§ 126. It is also common in marriage contracts to restrict re-marriage. the life interest of a surviving spouse to a smaller amount in the event of his or her re-marrying, or to forfeit the life interest, and substitute a fixed annuity of smaller amount. Sometimes, too, the provisions in favour of the spouses are diminished in the event of the existence of children. What was the result in such a case if the husband became bankrupt was at one time matter of controversy; but it is now settled that the husband's creditors cannot claim as against the children for the sum set free by the restriction. The contention of the creditors was that this accresced to the fee, and that the children were heirs of provision of the father, but this was overruled.2

Power of division or

§ 127. When a fund is destined to children, a faculty or appointment. power of division or appointment is generally reserved to the parents together or in succession, under which they can divide.

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2 Blairs v. Bell, 1782, M. 2280; Duff, Treatise on Deeds, p. 195.

the fund amongst their children in such proportions as they
think proper.
The power is generally made exercisable by
any deed or writing inter vivos or mortis causa; but as
"deed " has not the limited and technical meaning that is
attached to it in England the latter words are hardly neces-
sary, except, when by the use of the one expression only, it
is intended to limit the exercise of the power to an inter
vivos deed or to a testamentary deed as the case may be.


Issue of

It is no objection now to the execution of such a power that any object of the power has been altogether excluded; if, however, it is desired to give the parent power to restrict a child's share to a liferent merely, with fee to his issue, this must be expressly reserved or conferred upon him, otherwise it is impossible to appoint to such issue.2 children. "A power of apportionment however created, and to whatever estate it may relate, can be nothing more or less than a power of apportionment. It enables the holder of the power to divide the fund among the objects of the power in such proportions as he thinks proper; but it does not enable him to alter the quality of the estate which is settled on them by limiting an estate of fee to an estate of liferent, nor to confer a benefit on persons who are strangers to the power." 3 Under a power to appoint among children, interests may, however, be given to grandchildren by way of settlement, with concurrence of their parent who is an object of the power.

It is the English practice, therefore, to frame a contract of

137 and 38 Vict. c. 37; Mackie v. Gloag's Trustees, 1883, 10 R. 746, and in H.L. L.R. 9 App. Ca. 303.

2 Gillon's Trustees v. Gillon, 8 Feb. 1890, 17 R. 435.

3 Per Lord Rutherfurd Clark in Gillon's Trustees v. Gillon, supra. 4 White v. St. Barbe, 1 V. & B. 399; Cuninghame v. Anstruther, 1872, L.R. 2 Sc. App., at p. 234; Mackie v. Gloag's Trustees, 2d case [reported as Mackie v. Mackie's Trustees] 4 July, 1885, 12 R. 1231; Lennock's Trustees v. Lennock, 16 Oct. 1880, 8 R. 14; cf. Bell, Pr., § 1988.

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." Some

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. 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.



protection of provisions.

§ 131. Various conveyancing devices are resorted to for Schemes for 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.

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