Farquharson v. Burnett and Others [1900] ScotLR 37_574 (20 March 1900)

Farquharson v. Burnett and Others [1900] ScotLR 37_574 (20 March 1900)

The conditio si sine liberis does not apply to the children of an illegitimate child, who are legal strangers. A child of a predeceasing lawful child is entitled to that parent's share under the conditio. Where the testamentary gift to children is 'share and share alike' without survivorship, there is severance of...

Source-derived case information.

Citation
[1900] ScotLR 37_574
Parties
First Party (executrix and Surviving Child): Annie Stewart Farquharson; Second Parties (children of Predeceased Illegitimate Child): Lawful children of Mrs Mary Elder Farquharson or Niddrie (including Henry James Niddrie and Emily Ann Niddrie); Third Party (child of Predeceased Lawful Child): Annie Farquharson Burnett (with curator)
Jurisdiction
Scotland
Judgment Date
20 March 1900
Procedural Posture
Special Case (succession Dispute) / Inner House, First Division, Court of Session (final Judgment)
Outcome
First party entitled to five-eighths of the free residue; third party entitled to three-eighths; second parties take nothing. Shares of Mrs Niddrie and William Wilkie Farquharson fall into intestacy; legitim claim allowed to first party from intestate portion.
Legal Topics
Conditio Si Sine Liberis, Illegitimate Children and Succession, Legitim, Accretion, Intestacy
Succession Trusts and Estates Conditio Si Sine Liberis Illegitimate Children and Succession Legitim Accretion Intestacy

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Parties

Annie Stewart Farquharson

First Party (executrix and Surviving Child)

Lawful children of Mrs Mary Elder Farquharson or Niddrie (including Henry James Niddrie and Emily Ann Niddrie)

Second Parties (children of Predeceased Illegitimate Child)

Annie Farquharson Burnett (with curator)

Third Party (child of Predeceased Lawful Child)

Procedural Posture

Special Case (succession Dispute) / Inner House, First Division, Court of Session (final Judgment)

Legal Issues

  1. 1 Does the conditio si sine liberis apply to children of an illegitimate child?
  2. 2 Are the children of a predeceasing lawful child entitled to their parent's share under the conditio?
  3. 3 Do lapsed shares accrete to surviving beneficiaries or fall into intestacy?

Ratio Decidendi

The conditio si sine liberis does not apply to the children of an illegitimate child, who are legal strangers. A child of a predeceasing lawful child is entitled to that parent's share under the conditio. Where the testamentary gift to children is 'share and share alike' without survivorship, there is severance of interests and no accretion; lapsed shares fall into intestacy. The surviving child is entitled to legitim out of the intestate portion in addition to her testamentary share.

Court Disposition

First party entitled to five-eighths of the free residue; third party entitled to three-eighths; second parties take nothing. Shares of Mrs Niddrie and William Wilkie Farquharson fall into intestacy; legitim claim allowed to first party from intestate portion.

Orders

  • First question answered in the negative: second parties not entitled to any share.
  • Second question: third party (Miss Burnett) entitled to her mother's share.