Brown and Others v. Gregson [1919] ScotLR 333 (19 March 1919)

Brown and Others v. Gregson [1919] ScotLR 333 (19 March 1919)

The court held that the doctrine of election applies: beneficiaries who claim under the Scottish testamentary trust must, as a condition, make available their shares of the Argentine immoveable property (or its proceeds) for the purposes of the trust, unless it is impossible under Argentine law. Since the beneficiaries were unfettered owners and could effectually make the property or proceeds available (e.g., by conveyance or sale), they could not claim under the trust without doing so. The impossibility exception did not apply, as practical means existed to fulfil the testator's intention.

Citation
[1919] ScotLR 333
Parties
Pursuers and Real Raisers: Robert Charles Brown and others (testamentary trustees of the late James Brown of Barlay); Claimants: Miss Christina Isabella Brown and others (five of the seven children of James Brown); Claimants: George Birrell Carruthers and others (executors of Oswald Stanley Brown); Claimants: Anita Mary Angelica Latham Gregson and another (children of Mrs Mary Brown or Gregson)
Jurisdiction
Scotland
Judgment Date
19 March 1919
Procedural Posture
Multiplepoinding and Exoneration / Inner House, First Division, on Reclaiming Motion From Lord Ordinary
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; claimants (other than Mrs Gregson) required to make Argentine shares available for trust purposes as condition of claiming under settlement.
Legal Topics
Doctrine of Election, Appropriation and Reprobation, Testamentary Trusts, Foreign Law and Succession, Forfeiture Clauses
Succession Trusts and Estates Conflict of Laws Doctrine of Election Appropriation and Reprobation Testamentary Trusts Foreign Law and Succession Forfeiture 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 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Robert Charles Brown and others (testamentary trustees of the late James Brown of Barlay)

Pursuers and Real Raisers

Miss Christina Isabella Brown and others (five of the seven children of James Brown)

Claimants

George Birrell Carruthers and others (executors of Oswald Stanley Brown)

Claimants

Anita Mary Angelica Latham Gregson and another (children of Mrs Mary Brown or Gregson)

Claimants

Procedural Posture

Multiplepoinding and Exoneration / Inner House, First Division, on Reclaiming Motion From Lord Ordinary

Legal Issues

  1. 1 Whether beneficiaries who received shares of Argentine immoveable property as necessary heirs under Argentine law must make those shares available for the purposes of the Scottish testator's testamentary trust as a condition of claiming under the trust.
  2. 2 Whether the doctrine of election (approbate and reprobate) applies where foreign law prevents the trust from operating as intended by the testator.
  3. 3 Whether impossibility under foreign law excuses beneficiaries from the obligation to elect or surrender property for trust purposes.

Ratio Decidendi

The court held that the doctrine of election applies: beneficiaries who claim under the Scottish testamentary trust must, as a condition, make available their shares of the Argentine immoveable property (or its proceeds) for the purposes of the trust, unless it is impossible under Argentine law. Since the beneficiaries were unfettered owners and could effectually make the property or proceeds available (e.g., by conveyance or sale), they could not claim under the trust without doing so. The impossibility exception did not apply, as practical means existed to fulfil the testator's intention.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; claimants (other than Mrs Gregson) required to make Argentine shares available for trust purposes as condition of claiming under settlement.

Orders

  • Find that if any of the claimants shall take a share of the immoveable estate in the Argentine without making the same available for division in accordance with the general scheme of the testator's settlement, he or she cannot be entitled to claim under the settlement any share of the fund in medio.
  • Remit to the Lord Ordinary to proceed accordingly.