Moon v. Moon's Trustees [1908] ScotLR 165 (25 November 1908)

Moon v. Moon's Trustees [1908] ScotLR 165 (25 November 1908)

A clause in a father's will, accepted by his children, which excludes claims of legitim 'by and through the death of their mother,' does not bar a claim for legitim from the mother's estate under the Married Women's Property (Scotland) Act 1881, as the clause is construed to protect only the father's estate and not to exclude claims against the mother's separate estate, especially where the mother was not a party to the father's will and the right did not exist at the time of the will.

Citation
[1908] ScotLR 165
Parties
Pursuer: John William Moon; Defenders: Mrs Margaret Robertson Moon or Anderson and others, Trustees of Mrs Ann Moorhouse Stocks or Moon
Jurisdiction
Scotland
Judgment Date
25 November 1908
Procedural Posture
Action for Declarator and Payment of Legitim / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; declarator granted in favour of pursuer.
Legal Topics
Legitim, Discharge of Legal Rights, Interpretation of Exclusion Clauses, Married Women's Property (scotland) Act 1881
Succession Law Trusts and Estates Legitim Discharge of Legal Rights Interpretation of Exclusion Clauses Married Women's Property (scotland) Act 1881

Case Brief

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Parties

John William Moon

Pursuer

Mrs Margaret Robertson Moon or Anderson and others, Trustees of Mrs Ann Moorhouse Stocks or Moon

Defenders

Procedural Posture

Action for Declarator and Payment of Legitim / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a clause in a father's will, accepted by his children, excluding claims of legitim 'by and through the death of their mother' bars a claim for legitim from the mother's estate under the Married Women's Property (Scotland) Act 1881.

Ratio Decidendi

A clause in a father's will, accepted by his children, which excludes claims of legitim 'by and through the death of their mother,' does not bar a claim for legitim from the mother's estate under the Married Women's Property (Scotland) Act 1881, as the clause is construed to protect only the father's estate and not to exclude claims against the mother's separate estate, especially where the mother was not a party to the father's will and the right did not exist at the time of the will.

Court Disposition

Lord Ordinary's interlocutor recalled; declarator granted in favour of pursuer.

Orders

  • Pursuer entitled to legitim out of his mother's estate.
  • Decree pronounced in favour of pursuer.