Scottish Court of Session Decisions

Mr and Mrs Kenmore were married in 1860. By their marriage-contract Mrs Kenmore conveyed to trustees her whole estate except £400 and certain moveable property, which money and property were to be held by her exclusive of her husband's jus mariti and right of administration. Mr Kenmore provided an annuity of £60, besides another annuity to which his widow would be entitled from a widows' fund. After the marriage, Mrs Kenmore advanced certain sums of money to her husband, whereof £140 remained unpaid at her husband's death. On 23rd July 1862 Mr Kenmore delivered to Mrs Kenmore a holograph writing which remained in her possession, in the following terms, viz., “I, William Frederick Kenmore, advocate, Edinburgh, hereby leave, bequeath, and make over, to my wife Catherine Russell Hill or Kenmore, three shares of my Commercial Bank Stock in payment of money lent me by her. W. F. Kenmore. Edinburgh, 23 July 1862.” On 7th June 1865 Mr Kenmore delivered to Mrs Kenmore another holograph writing which remained likewise in her possession, in the following terms:—“Edinburgh June 7th 1865.—I, William Frederick Kenmore, advocate, hereby leave and bequeath to you, Catherine Russell Hill or Kenmore, my spouse, Five hundred pounds Stg. worth stock of Commercial Bank of Scotland. W. F. Fenmore. You, Mrs Kenmore, should sell and heritably invest the amount which, as according to quotations from Scotsman of June 3d, sold at Two hundred and thirty pounds Stg. per one hundred pounds Stg. stock; that I would advise you to do in regard that a woman should not be in any mercantile firm.” W. F. K. “To Mrs Kenmore.”

In 1867, Mrs Kenmore obtained decree in an action of separation and aliment, brought by her against her husband. On 23d June 1868 Mr Kenmore executed a trust-disposition and settlement by which he conveyed to trustees his whole estate, heritable and moveable, in trust for the purposes therein mentioned. The deed proceeds on the narrative that the testator had “resolved to settle my affairs during my life,” and the purposes are “in the first place, for payment of all my just and lawful debts, deathbed and funeral charges, and the expenses of executing this trust. In the second place, that my said trustees shall assign and convey over to Maria Jane Dalziel, sister of my first wife, one share of the stock of the Commercial Bank of Scotland, belonging to me and part of my trust-estate, to be held and enjoyed by the said Maria Jane Dalziel as her absolute property, and all dividends and profits that may fall due thereon. In the third place, I direct my trustees to hold the whole residue of my means and estate, heritable and moveable, before conveyed, for behoof of the said Catherine Margaret Kenmore, my daughter, while she shall survive me, and to lay out the annual return derivable from the said residue for her education and maintenance until she shall

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reach the age of twenty-one years complete, or be married, whichever of these events shall first happen, and on the arrival of these events, or either of them, immediately on being required by my said daughter so to do, to denude themselves of this trust, and dispone, assign, convey, and make over to the said Catherine Margaret Kenmore, or to any trustees to be named by her and her husband, the whole of the said residue of my said heritable and moveable estate, but exclusive always of the jus mariti and right of administration of any husband my said daughter may marry; declaring that the said residue and the revenue derivable therefrom shall belong to herself only, and shall not be subject to the debts or deeds or diligence of the creditors of the husbands she may marry any manner of way, and in case of the death of my said daughter before the said conveyance by my said trustees, leaving lawful issue of her body, I direct my said trustees to hold the said estate and apply the annual return therefrom for behoof of such issue, until the youngest of said issue shall attain majority, or in the case of a daughter she be married, and thereupon to divide and convey the said residue amongst said issue, share and share alike; and failing my said daughter without lawful issue of her body, and failing further lawful children of my own body, I direct my said trustees to dispone, assign, convey, and make over the said residue of my said estate, heritable and moveable, to one of his trustees.” The trust-disposition and settlement contained no express clause of revocation of previous settlements or bequests, nor did it contain any express direction to the trustees to pay legacies which he had bequeathed or might bequeath by separate writings. Mr Kenmore died on 17th August 1868. He was survived by Mrs Kenmore and by their only child the said Catherine Margaret Kenmore. His personal estate amounted, conform to Inventory given up by his trustees, to £3,715, 3s. 5fd. sterling, which includes 12 shares (or £1200 of the stock) of the Commercial Bank of Scotland, valued in said Inventory at £3,144. His heritable estate consisted of house property and investments on heritable security, yielding a yearly income of about £280.

These questions were argued before the Court:—“

“1. Whether both or either of the holograph writings of 23d July 1862 and 7th June 1865 constitute valid and effectual bequests in favour of Mrs Kenmore, and what is their legal effect? or Whether both or either of them were revoked by the trust-disposition and settlement of 23d June 1868.

2. Whether, in the event of the holograph writing of 23d July 1862 being found to have been revoked, the said Mrs Catherine Russell Hill or Kenmore is entitled to payment of the said balance of £140 with interest at the rate of 5 per cent, per annum from 12th April 1861 till payment, or any part thereof.”

Clark and Johnstone for Mrs Kenmore.

Gifford and Mair for trustees.

At advising—