Cobban's Trustees v. Cobban and Others [1914] ScotLR 89 (13 November 1914)

Cobban's Trustees v. Cobban and Others [1914] ScotLR 89 (13 November 1914)

The residue is to be divided among the brothers and their children (excluding the two named nephews) per capita, not per stirpes, as the wording and context of the will indicate a joint class of beneficiaries. The legacy of £100 and the endowment policies to Alexander Cobban was a special legacy, which was adeemed by repayment of the debt and the policies ceasing to exist before the testator's death; the codicil's confirmation clause does not revive the legacy.

Citation
[1914] ScotLR 89
Parties
First Parties (executors): Henry Edwin Veal and another, executors of the deceased Alexander Cobban; Second Parties (brothers of Deceased): Peter Cobban and George Cobban; Third Parties (beneficiaries): Peter Cobban and his children (excluding two named); Fourth Parties (beneficiaries): George Cobban and his children; Fifth Party (excluded Nephew, Specific Legatee): Alexander Cobban (son of Peter Cobban, excluded from residue)
Jurisdiction
Scotland
Judgment Date
13 November 1914
Procedural Posture
Special Case (succession/probate) / Court of Session Inner House, Extra Division Judgment
Outcome
First alternative of first question answered in the negative, second alternative in the affirmative; first alternative of second question in the negative, second in the affirmative; third question answered in the negative.
Legal Topics
Construction of Wills, Ademption of Legacy, Division of Residue, Interpretation of 'and' and 'between' in Testamentary Dispositions
Succession Wills and Probate Construction of Wills Ademption of Legacy Division of Residue Interpretation of 'and' and 'between' in Testamentary Dispositions

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Parties

Henry Edwin Veal and another, executors of the deceased Alexander Cobban

First Parties (executors)

Peter Cobban and George Cobban

Second Parties (brothers of Deceased)

Peter Cobban and his children (excluding two named)

Third Parties (beneficiaries)

George Cobban and his children

Fourth Parties (beneficiaries)

Alexander Cobban (son of Peter Cobban, excluded from residue)

Fifth Party (excluded Nephew, Specific Legatee)

Procedural Posture

Special Case (succession/probate) / Court of Session Inner House, Extra Division Judgment

Legal Issues

  1. 1 Whether the residue of the estate is to be divided among the brothers only or among the brothers and their children including the brothers themselves (excluding two nephews)
  2. 2 Whether the division is per stirpes (by family) or per capita (by individual)
  3. 3 Whether the legacy of £100 and endowment policies to Alexander Cobban subsists or is adeemed

Ratio Decidendi

The residue is to be divided among the brothers and their children (excluding the two named nephews) per capita, not per stirpes, as the wording and context of the will indicate a joint class of beneficiaries. The legacy of £100 and the endowment policies to Alexander Cobban was a special legacy, which was adeemed by repayment of the debt and the policies ceasing to exist before the testator's death; the codicil's confirmation clause does not revive the legacy.

Court Disposition

First alternative of first question answered in the negative, second alternative in the affirmative; first alternative of second question in the negative, second in the affirmative; third question answered in the negative.

Orders

  • Residue to be divided per capita among brothers and their children (excluding two nephews)
  • Legacy of £100 and endowment policies to Alexander Cobban held to be adeemed and not payable