Mackenzie's Trustees v. Mackenzie [1922] ScotLR 307 (17 March 1922)

Mackenzie's Trustees v. Mackenzie [1922] ScotLR 307 (17 March 1922)

The claimant's interest under the will is a liferent within the meaning of section 9 of the Trusts (Scotland) Act 1921. As he was born after the testator's death (the date of the deed), is now of full age, and the fund is held by trustees for his behoof, he is entitled to the absolute fee of his share. The statute applies even if other potential beneficiaries are prejudiced, as its purpose is to prevent the tying up of moveable property by liferent.

Citation
[1922] ScotLR 307
Parties
Pursuers and Real Raisers: Mrs Margaret Allan Stuart Mackenzie or Davison and another (Sir James Thompson Mackenzie's trustees); Claimant and Reclaimer: Captain Eric Dighton Mackenzie
Jurisdiction
Scotland
Judgment Date
17 March 1922
Procedural Posture
Multiplepoinding and Exoneration / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division
Outcome
Appeal allowed; claim sustained
Legal Topics
Liferent and Fee, Trusts (scotland) Act 1921, Section 9, Posthumous Liferenter's Rights, Class Gifts in Succession
Succession Trusts and Estates Liferent and Fee Trusts (scotland) Act 1921, Section 9 Posthumous Liferenter's Rights Class Gifts in Succession

Case Brief

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Parties

Mrs Margaret Allan Stuart Mackenzie or Davison and another (Sir James Thompson Mackenzie's trustees)

Pursuers and Real Raisers

Captain Eric Dighton Mackenzie

Claimant and Reclaimer

Procedural Posture

Multiplepoinding and Exoneration / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division

Legal Issues

  1. 1 Whether a posthumous child with a liferent interest under a will is entitled to the fee of his share under section 9 of the Trusts (Scotland) Act 1921
  2. 2 Whether the statutory provision applies where other parties' interests may be affected

Ratio Decidendi

The claimant's interest under the will is a liferent within the meaning of section 9 of the Trusts (Scotland) Act 1921. As he was born after the testator's death (the date of the deed), is now of full age, and the fund is held by trustees for his behoof, he is entitled to the absolute fee of his share. The statute applies even if other potential beneficiaries are prejudiced, as its purpose is to prevent the tying up of moveable property by liferent.

Court Disposition

Appeal allowed; claim sustained

Orders

  • The interlocutor of the Lord Ordinary is recalled.
  • The claimant, Captain Eric Dighton Mackenzie, is ranked and preferred in terms of his claim.