Fleming v. Fleming [1921] ScotLR 340 (19 March 1921)

Fleming v. Fleming [1921] ScotLR 340 (19 March 1921)

The Court held, by majority, that the yearly sum was a permanent burden on the lands unless and until redeemed by the heir in possession, and that the share of a deceased beneficiary did not accresce to the survivors but passed to the executors of the deceased. The construction of the will and codicil, the fixed nature of the redemption sum, and the absence of any presumption of a life annuity in Scots law were decisive.

Citation
[1921] ScotLR 340
Parties
First Party (eldest Son, Succeeded to Inchyra): Rev. Archibald Fleming, D.D.; Second Party (succeeded to Hamilton House): Hamilton Fleming; Third Parties (executors of Deceased Daughter): Executors of Mrs Clare Fleming or Reuther; Fourth Parties (younger Children): Mrs Isabella Fleming or Macarthur and Maxwell Fleming
Jurisdiction
Scotland
Judgment Date
19 March 1921
Procedural Posture
Special Case (construction of Will/trust) / Inner House, First Division, Court of Session (final Judgment)
Outcome
First question of law (permanency of burden and entitlement of executors) answered in the affirmative; questions two, three, and four answered in the negative.
Legal Topics
Construction of Wills, Bequest of Annuity, Accretion, Redemption of Burdens, Class Gifts
Succession Trusts and Estates Construction of Wills Bequest of Annuity Accretion Redemption of Burdens Class Gifts

Case Brief

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Parties

Rev. Archibald Fleming, D.D.

First Party (eldest Son, Succeeded to Inchyra)

Hamilton Fleming

Second Party (succeeded to Hamilton House)

Executors of Mrs Clare Fleming or Reuther

Third Parties (executors of Deceased Daughter)

Mrs Isabella Fleming or Macarthur and Maxwell Fleming

Fourth Parties (younger Children)

Procedural Posture

Special Case (construction of Will/trust) / Inner House, First Division, Court of Session (final Judgment)

Legal Issues

  1. 1 Whether the yearly sum provided by the mutual disposition and settlement is a permanent burden on the lands unless redeemed, or a life annuity for the beneficiaries only; whether the share of a deceased beneficiary accresces to survivors or passes to executors; whether the annuity is perpetual or terminates on death of beneficiaries; whether redemption can be compelled by beneficiaries.

Ratio Decidendi

The Court held, by majority, that the yearly sum was a permanent burden on the lands unless and until redeemed by the heir in possession, and that the share of a deceased beneficiary did not accresce to the survivors but passed to the executors of the deceased. The construction of the will and codicil, the fixed nature of the redemption sum, and the absence of any presumption of a life annuity in Scots law were decisive.

Court Disposition

First question of law (permanency of burden and entitlement of executors) answered in the affirmative; questions two, three, and four answered in the negative.

Orders

  • The yearly sum is a permanent burden on the lands unless redeemed.
  • The executors of a deceased beneficiary are entitled to the deceased's share of the annuity or redemption sum.