Gilmour's Trustees v. Gilmour and Others [1922] ScotLR 563 (20 July 1922)

Gilmour's Trustees v. Gilmour and Others [1922] ScotLR 563 (20 July 1922)

The heir not collating is not to be counted as a caput in the division of the legitim fund; the legitim fund is to be divided among the remaining children claiming legitim, subject to collation inter se of advances made to them. Advances for which no receipt was given but referred to as a gift/provision are to be collated if the child claims legitim. Other advances, where the documentation shows they are to be imputed towards legitim, are to be dealt with by collation inter liberos, not by set-off to the benefit of the general estate. Interest on advances is not to be collated unless expressly stipulated.

Citation
[1922] ScotLR 563
Parties
First Parties: Henrietta, Lady Gilmour, Denbrae, Cupar, Fife, and others (trustees under the trust-disposition and deed of settlement of the late Sir John Gilmour); Second Party: Lieutenant-Colonel Sir John Gilmour, Baronet, of Lundin and Montrave; Third Party: Captain Harry Gilmour, Denbrae; Fourth Parties: Lieutenant-Colonel Gilmour and others, trustees under the antenuptial contract of marriage between Lieutenant-Colonel James Younger and Mrs Maud Gilmour or Younger
Jurisdiction
Scotland
Judgment Date
20 July 1922
Procedural Posture
Special Case (succession/trusts) / Inner House, First Division, Court of Session (judgment)
Outcome
Questions answered as follows: The heir not collating is not to be counted in the division of the legitim fund; advances are to be collated inter se among claimants; interest on advances is not to be collated.
Legal Topics
Legitim, Collation Inter Hæredes, Collation Inter Liberos, Advances to Children, Set Off of Advances, Interest on Advances, Heirship and Exclusion From Legitim
Succession Law Trusts and Estates Legitim Collation Inter Hæredes Collation Inter Liberos Advances to Children Set Off of Advances Interest on Advances +1 more

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Parties

Henrietta, Lady Gilmour, Denbrae, Cupar, Fife, and others (trustees under the trust-disposition and deed of settlement of the late Sir John Gilmour)

First Parties

Lieutenant-Colonel Sir John Gilmour, Baronet, of Lundin and Montrave

Second Party

Captain Harry Gilmour, Denbrae

Third Party

Lieutenant-Colonel Gilmour and others, trustees under the antenuptial contract of marriage between Lieutenant-Colonel James Younger and Mrs Maud Gilmour or Younger

Fourth Parties

Procedural Posture

Special Case (succession/trusts) / Inner House, First Division, Court of Session (judgment)

Legal Issues

  1. 1 Whether the heir not collating is to be counted as a caput in the division of the legitim fund; Whether advances to children are to be collated or set off; Whether interest on advances is to be collated; How the legitim fund is to be computed and divided among claimants.

Ratio Decidendi

The heir not collating is not to be counted as a caput in the division of the legitim fund; the legitim fund is to be divided among the remaining children claiming legitim, subject to collation inter se of advances made to them. Advances for which no receipt was given but referred to as a gift/provision are to be collated if the child claims legitim. Other advances, where the documentation shows they are to be imputed towards legitim, are to be dealt with by collation inter liberos, not by set-off to the benefit of the general estate. Interest on advances is not to be collated unless expressly stipulated.

Court Disposition

Questions answered as follows: The heir not collating is not to be counted in the division of the legitim fund; advances are to be collated inter se among claimants; interest on advances is not to be collated.

Orders

  • The legitim fund is to be divided among the children actually claiming legitim, excluding the heir who does not collate.
  • Advances made to children are to be collated inter se among claimants, not set off to the benefit of the general estate.