Harvey v. M'Lachlan's Trustees [1908] ScotLR 156 (26 November 1908)

Harvey v. M'Lachlan's Trustees [1908] ScotLR 156 (26 November 1908)

The Court held that the testator's intention was to benefit his wife with the whole estate, and the phrase 'and my heirs and assignees' was either a mistaken insertion or, if intentional, should be read as introducing a conditional institution ('whom failing') rather than a joint disposition. The wife's trustees were therefore entitled to the whole fund in medio.

Citation
[1908] ScotLR 156
Parties
Pursuer/respondent: Francis Wood Clark and another (Trustees under the trust-disposition and settlement of Mrs Margaret Scotland or M'Lachlan); Claimant/reclaimer: Mrs Catherine Mullen or Harvey; Claimant/respondent: Donald M'Kinnon and Another
Jurisdiction
Scotland
Judgment Date
26 November 1908
Procedural Posture
Multiplepoinding and Exoneration / Inner House Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor adhered to.
Legal Topics
Construction of Testamentary Documents, Bequest Interpretation, Use of Printed Forms in Wills
Succession Wills and Probate Construction of Testamentary Documents Bequest Interpretation Use of Printed Forms in Wills

Case Brief

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Parties

Francis Wood Clark and another (Trustees under the trust-disposition and settlement of Mrs Margaret Scotland or M'Lachlan)

Pursuer/respondent

Mrs Catherine Mullen or Harvey

Claimant/reclaimer

Donald M'Kinnon and Another

Claimant/respondent

Procedural Posture

Multiplepoinding and Exoneration / Inner House Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the bequest of the whole estate to 'my spouse and my heirs and assignees' constituted a joint disposition or a conditional institution in favour of the spouse, with heirs taking only on her predecease
  2. 2 Whether the insertion of 'my' instead of 'her' before 'heirs and assignees' was a mistake or intentional
  3. 3 Whether marginal notes on the printed form could be used in construing the will

Ratio Decidendi

The Court held that the testator's intention was to benefit his wife with the whole estate, and the phrase 'and my heirs and assignees' was either a mistaken insertion or, if intentional, should be read as introducing a conditional institution ('whom failing') rather than a joint disposition. The wife's trustees were therefore entitled to the whole fund in medio.

Court Disposition

Appeal dismissed; interlocutor adhered to.

Orders

  • Mrs M'Lachlan's trustees ranked and preferred to the whole fund in medio; competing claims repelled.