Turnbull v. Turnbull's Trustee [1907] ScotLR 843 (11 July 1907)

The Court held that while there is no legal presumption that a woman is past childbearing at any age, payment of the trust estate may be allowed to the pursuer on her finding caution for repetition in the event of children being born, following established practice in similar cases.

Citation: [1907] ScotLR 843
Parties: Pursuer: Elizabeth Murdoch Turnbull; Defender: J. S. Fleming
Jurisdiction: Scotland
Judgment Date: 11 July 1907
Procedural Posture: Trust Succession Dispute / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor
Outcome: interlocutor of Lord Ordinary recalled; proof before answer allowed
Legal Topics: Denuding, Presumption as to Childbearing, Anticipation of Period of Payment, Finding Caution, Intestate Succession

Trusts Succession Denuding Presumption as to Childbearing Anticipation of Period of Payment Finding Caution Intestate Succession

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Parties

Elizabeth Murdoch Turnbull

Pursuer

J. S. Fleming

Defender

Procedural Posture

Trust Succession Dispute / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor

Legal Issues

1 Whether a woman can be presumed by law to be past childbearing at any particular age
2 Whether the trust estate should be paid to the pursuer on finding caution for repetition in the event of children being born
3 Whether the residue of the trust estate falls to the pursuer as intestate succession

Ratio Decidendi

Court Disposition

interlocutor of Lord Ordinary recalled; proof before answer allowed

Orders

Proof before answer allowed on pursuer's averments in articles 6 and 7 of condescendence
Payment to pursuer may be authorised on finding caution for repetition in event of children being born