Marshall v. Marshall [1900] ScotLR 37_775 (15 June 1900)

Marshall v. Marshall [1900] ScotLR 37_775 (15 June 1900)

The trust-disposition imported a conditional institution, not a substitution. The trustees' insertion of a substitution in the disposition was unauthorised and did not affect the rights of parties. Gavin Ballantyne Marshall took the estate absolutely, and upon his intestate death, his heir-at-law (the elder son) was entitled to succeed to the whole lands.

Citation
[1900] ScotLR 37_775
Parties
First Party: Mrs Isabella Murray or Marshall (as tutor and administrator-in-law to her two sons); Second Party: James Marshall; Third Party: William Murray Marshall
Jurisdiction
Scotland
Judgment Date
15 June 1900
Procedural Posture
Special Case (succession Dispute) / Judgment by Inner House, Second Division
Outcome
First question answered in the affirmative (second party entitled to succeed as heir-at-law); second question answered in the negative (second and third parties not entitled to succeed in equal shares as heirs of provision).
Legal Topics
Conditional Institution, Substitution, Trustee Powers, Heritable Succession
Succession Trusts and Estates Conditional Institution Substitution Trustee Powers Heritable Succession

Case Brief

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Parties

Mrs Isabella Murray or Marshall (as tutor and administrator-in-law to her two sons)

First Party

James Marshall

Second Party

William Murray Marshall

Third Party

Procedural Posture

Special Case (succession Dispute) / Judgment by Inner House, Second Division

Legal Issues

  1. 1 Whether the trust-disposition imported a substitution or a conditional institution
  2. 2 Whether the trustees' insertion of a substitution in the disposition was authorised and effective
  3. 3 Who is entitled to succeed to the lands of Syderig or Newhouse after Gavin Ballantyne Marshall's death intestate

Ratio Decidendi

The trust-disposition imported a conditional institution, not a substitution. The trustees' insertion of a substitution in the disposition was unauthorised and did not affect the rights of parties. Gavin Ballantyne Marshall took the estate absolutely, and upon his intestate death, his heir-at-law (the elder son) was entitled to succeed to the whole lands.

Court Disposition

First question answered in the affirmative (second party entitled to succeed as heir-at-law); second question answered in the negative (second and third parties not entitled to succeed in equal shares as heirs of provision).

Orders

  • Declare James Marshall entitled to succeed to the heritable estate as heir-at-law.
  • Reject claim of William Murray Marshall to succeed in equal share as heir of provision.