Mackenzie's Trustees v. Mackenzie and Others [1906] ScotLR 44_126 (29 November 1906)

Mackenzie's Trustees v. Mackenzie and Others [1906] ScotLR 44_126 (29 November 1906)

The Court held that the phrase 'heir for the time being entitled to succeed under the said deed of entail' in the fourth codicil was a description of the person intended to benefit from the residue, not a condition requiring actual possession or the existence of an entailed estate. The testator's intention was to benefit the person who would have been entitled under the deed of entail, even if the entail was never executed or the estate was disentailed. Therefore, the residue did not fall into intestacy and was to be distributed according to the testator's directions.

Citation
[1906] ScotLR 44_126
Parties
Trustee and Executor (pursuer): Mrs Margaret Allan Stuart Mackenzie or Davidson; Trustee and Executor (pursuer): George Auldjo Jamieson, W. S.; Claimant (next of Kin): Ronald Mackenzie Logan; Claimant (next of Kin): Marguerite Alice Logan; Claimant (administratrix of Claude Longueville Mackenzie): Flora, Baroness Wesselenyi; Claimant (heir): Victor Audley Falconer Mackenzie
Jurisdiction
Scotland
Judgment Date
29 November 1906
Procedural Posture
Multiplepoinding (distribution of Estate) / Inner House Appeal (reclaiming Note)
Outcome
Reclaiming note refused; interlocutor of Lord Ordinary adhered to.
Legal Topics
Construction of Testamentary Writings, Intestacy, Entitlement Under Deed of Entail, Interpretation of Residuary Clauses
Succession Trusts Entail Construction of Testamentary Writings Intestacy Entitlement Under Deed of Entail Interpretation of Residuary Clauses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Mrs Margaret Allan Stuart Mackenzie or Davidson

Trustee and Executor (pursuer)

George Auldjo Jamieson, W. S.

Trustee and Executor (pursuer)

Ronald Mackenzie Logan

Claimant (next of Kin)

Marguerite Alice Logan

Claimant (next of Kin)

Flora, Baroness Wesselenyi

Claimant (administratrix of Claude Longueville Mackenzie)

Victor Audley Falconer Mackenzie

Claimant (heir)

Procedural Posture

Multiplepoinding (distribution of Estate) / Inner House Appeal (reclaiming Note)

Legal Issues

  1. 1 Whether the residue of the estate fell into intestacy due to the non-execution of the deed of entail and disentailment of the estate of Kintail.
  2. 2 Whether the phrase 'heir for the time being entitled to succeed under the said deed of entail' is a condition or a description of the beneficiary.

Ratio Decidendi

The Court held that the phrase 'heir for the time being entitled to succeed under the said deed of entail' in the fourth codicil was a description of the person intended to benefit from the residue, not a condition requiring actual possession or the existence of an entailed estate. The testator's intention was to benefit the person who would have been entitled under the deed of entail, even if the entail was never executed or the estate was disentailed. Therefore, the residue did not fall into intestacy and was to be distributed according to the testator's directions.

Court Disposition

Reclaiming note refused; interlocutor of Lord Ordinary adhered to.

Orders

  • Trustees' claim sustained and they are ranked and preferred for the residue.
  • Claims of next-of-kin repelled.