Crum Ewing's Trustees v. Bayly's Trustees and Others

(Before the Lord Chancellor (Loreburn) , Earl of Halsbury , Lord Macnaghten , Lord Atkinson , Lord Shaw , and Lord Robson .)

(Ante January 28, 1910, 47 S.L.R. 423, and 1910 S.C. 484; and July 20, 1910, 47 S.L.R. 876, and 1910 S.C. 994.)

James Campbell Pitman, advocate, curator ad litem to Mildred Jean Douglas and others, grandchildren of Mrs Jane Coventry Crum Ewing or Bayly, appealed to the House of Lords

It must, I should think, be assumed that every donor who executes a deed, and every testator who makes a will, intends the gifts he purports to make, and the benefits he purports to confer, should be taken and enjoyed by those for whom he designs them and none others, so that a beneficiary who asserts a claim to something given to another by their common benefactor necessarily defeats pro tanto the intention of that benefactor. This, it is urged, is not enough in Scotland.

I am quite unable to reconcile these pronouncements with the rule contended for by Mr Blackburn. I think they establish that the English and Scotch doctrines though differing in name are identical in principle, and therefore that in this case (subject to the second point which has been raised) the children of the testatrix claiming in default of appointment, and also claiming their legitim in their mother's separate estate, should be put to their election between those rights and the benefits conferred upon them by her will.