Johnstone v. Mackenzie's Trustees [1910] ScotLR 256 (23 December 1910)

Johnstone v. Mackenzie's Trustees [1910] ScotLR 256 (23 December 1910)

On a sound construction of the will, the widow's right was one of occupancy, not a proper liferent, and she was entitled to occupy the house free of liability for feu-duty, proprietor's taxes, and landlord's repairs. The trustees, as proprietors, were liable for these burdens, to be paid out of the surplus revenue of the fund set aside for the widow's annuity. The widow was not personally barred from recovering the sums paid by her in respect of these burdens.

Citation
[1910] ScotLR 256
Parties
Pursuer (reclaimer) / Widow: Johnstone; Defenders (respondents) / Trustees: Mackenzie's Trustees
Jurisdiction
Scotland
Judgment Date
23 December 1910
Procedural Posture
Civil (succession / Trusts) / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
Appeal allowed; Lord Ordinary's interlocutor recalled; declarator granted in favour of pursuer; decree for payment granted.
Legal Topics
Liferent Vs. Occupancy, Liability for Public Burdens, Interpretation of Wills, Personal Bar (acquiescence, Taciturnity)
Succession Trusts and Estates Property Law Liferent Vs. Occupancy Liability for Public Burdens Interpretation of Wills Personal Bar (acquiescence, Taciturnity)

Case Brief

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Parties

Johnstone

Pursuer (reclaimer) / Widow

Mackenzie's Trustees

Defenders (respondents) / Trustees

Procedural Posture

Civil (succession / Trusts) / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the widow's right to the dwelling-house was a proper liferent or a mere right of occupancy
  2. 2 Whether the widow was liable for feu-duty, proprietor's taxes, and landlord's repairs, or whether the trustees were liable
  3. 3 Whether the widow was personally barred from claiming reimbursement for sums paid in respect of these burdens

Ratio Decidendi

On a sound construction of the will, the widow's right was one of occupancy, not a proper liferent, and she was entitled to occupy the house free of liability for feu-duty, proprietor's taxes, and landlord's repairs. The trustees, as proprietors, were liable for these burdens, to be paid out of the surplus revenue of the fund set aside for the widow's annuity. The widow was not personally barred from recovering the sums paid by her in respect of these burdens.

Court Disposition

Appeal allowed; Lord Ordinary's interlocutor recalled; declarator granted in favour of pursuer; decree for payment granted.

Orders

  • Declared that the pursuer is entitled to occupy the dwelling-house free of liability for feu-duties, proprietor's taxes, and landlord's repairs.
  • Ordered the trustees to pay such burdens out of the surplus revenue from the fund set aside for the widow's annuity.