Ness v. Mills' Trustees [1923] ScotLR 241 (17 January 1923)

Ness v. Mills' Trustees [1923] ScotLR 241 (17 January 1923)

The pursuers failed to discharge the onus of showing that the trust purposes had failed due to impossibility of performance, given the wide discretion afforded to the trustees and the possibility of fulfilling the bequest, albeit on a modest scale, with the funds available at the relevant date.

Citation
[1923] ScotLR 241
Parties
Pursuer: Mrs Johan Mills Balharrie or Livie and David Brown Livie; Defender: Thomas Milne and others, Trustees of John Mills
Jurisdiction
Scotland
Judgment Date
17 January 1923
Procedural Posture
Civil / Appeal (reclaiming Note) From Interlocutor of Lord Ordinary
Outcome
Defenders assoilzied (absolved); action dismissed.
Legal Topics
Lapse of Bequest, Impossibility of Performance, Accumulation of Income, Trustee Discretion, Resulting Trust
Succession Trusts Lapse of Bequest Impossibility of Performance Accumulation of Income Trustee Discretion Resulting Trust

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Parties

Mrs Johan Mills Balharrie or Livie and David Brown Livie

Pursuer

Thomas Milne and others, Trustees of John Mills

Defender

Procedural Posture

Civil / Appeal (reclaiming Note) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether the bequest for the erection and maintenance of a scientific institution in Dundee failed due to impossibility of performance from insufficient funds
  2. 2 Whether the residue and accumulations should fall into intestacy and pass to the heirs in mobilibus

Ratio Decidendi

The pursuers failed to discharge the onus of showing that the trust purposes had failed due to impossibility of performance, given the wide discretion afforded to the trustees and the possibility of fulfilling the bequest, albeit on a modest scale, with the funds available at the relevant date.

Court Disposition

Defenders assoilzied (absolved); action dismissed.

Orders

  • Defenders assoilzied from the conclusions of the summons.