Auld and Another (Rodger's Trustees) v. Allfrey and Others [1910] ScotLR 869 (15 July 1910)

Auld and Another (Rodger's Trustees) v. Allfrey and Others [1910] ScotLR 869 (15 July 1910)

Forfeiture under the will could not operate against Alexander Rodger's sons because they had no knowledge of the bequest or its conditions and thus no opportunity to elect to return to Scotland; forfeiture depends on an informed election, which did not occur.

Citation
[1910] ScotLR 869
Parties
Trustees (applicants): William Auld, C. A., Glasgow, and another, trustees of the deceased James Rodger; Claimants (reclaimers): Alexander Rodger and James Rodger (sons of Alexander Rodger senior); Claimants (respondents): Mrs Allfrey and Others (nephews and nieces or their representatives); Claimants (respondents): Mrs Hampton and Others
Jurisdiction
Scotland
Judgment Date
15 July 1910
Procedural Posture
Multiplepoinding and Exoneration / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; proof before answer of the claimants' averments allowed.
Legal Topics
Conditional Legacy, Forfeiture Clause, Election by Beneficiary, Trustee Duties, Intimation to Beneficiaries
Succession Trusts and Estates Conditional Legacy Forfeiture Clause Election by Beneficiary Trustee Duties Intimation to Beneficiaries

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Parties

William Auld, C. A., Glasgow, and another, trustees of the deceased James Rodger

Trustees (applicants)

Alexander Rodger and James Rodger (sons of Alexander Rodger senior)

Claimants (reclaimers)

Mrs Allfrey and Others (nephews and nieces or their representatives)

Claimants (respondents)

Mrs Hampton and Others

Claimants (respondents)

Procedural Posture

Multiplepoinding and Exoneration / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a forfeiture clause in a will operates against beneficiaries who had no knowledge of the bequest or its conditions within the prescribed period.
  2. 2 Whether trustees are under a duty to intimate the existence and conditions of a bequest to all beneficiaries individually.

Ratio Decidendi

Forfeiture under the will could not operate against Alexander Rodger's sons because they had no knowledge of the bequest or its conditions and thus no opportunity to elect to return to Scotland; forfeiture depends on an informed election, which did not occur.

Court Disposition

Lord Ordinary's interlocutor recalled; proof before answer of the claimants' averments allowed.

Orders

  • Recall of Lord Ordinary's interlocutor as regards the claim of Alexander Rodger and James Rodger.
  • Allow proof before answer of the claimants' averments.