Bennett's Executrix v. Bennett's Executors [1907] ScotLR 486 (28 February 1907)

Bennett's Executrix v. Bennett's Executors [1907] ScotLR 486 (28 February 1907)

The sum of £3000, evidenced by the deed of acknowledgment and bearing interest half-yearly, constitutes an obligation for payment of annual rent and profit within the meaning of Act 1661, c. 32, and is therefore heritable in a question of jus relictæ. The Court found no material distinction from Dawson's Trustees v. Dawson, confirming the heritable character of the obligation.

Citation
[1907] ScotLR 486
Parties
Pursuer: Elsie Mary Byrne, executrix-dative of Margaret Brown Byrne or Bennett; Defenders: Robert Sutherland and others, executors-nominate of William Bennett
Jurisdiction
Scotland
Judgment Date
28 February 1907
Procedural Posture
Succession Dispute / Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor
Outcome
Court adhered to Lord Ordinary's interlocutor; sum of £3000 not included in jus relictæ fund.
Legal Topics
Heritable and Moveable Property, Jus Relictæ, Deed of Acknowledgment, Interpretation of Act 1661, C. 32
Succession Property Law Heritable and Moveable Property Jus Relictæ Deed of Acknowledgment Interpretation of Act 1661, C. 32

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Parties

Elsie Mary Byrne, executrix-dative of Margaret Brown Byrne or Bennett

Pursuer

Robert Sutherland and others, executors-nominate of William Bennett

Defenders

Procedural Posture

Succession Dispute / Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the sum of £3000 deposited with Thomas & James Bernard Limited by William Bennett is heritable or moveable for purposes of jus relictæ
  2. 2 Whether the deed of acknowledgment constitutes an obligation containing a clause for payment of annual rent and profit under Act 1661, c. 32

Ratio Decidendi

The sum of £3000, evidenced by the deed of acknowledgment and bearing interest half-yearly, constitutes an obligation for payment of annual rent and profit within the meaning of Act 1661, c. 32, and is therefore heritable in a question of jus relictæ. The Court found no material distinction from Dawson's Trustees v. Dawson, confirming the heritable character of the obligation.

Court Disposition

Court adhered to Lord Ordinary's interlocutor; sum of £3000 not included in jus relictæ fund.

Orders

  • Repels the third plea-in-law for the pursuer.
  • Appoints the cause to be enrolled for further procedure.