Sloss and Another (Garden's Trustees) v. Cruickshank and Others [1912] ScotLR 249 (03 December 1912)

Sloss and Another (Garden's Trustees) v. Cruickshank and Others [1912] ScotLR 249 (03 December 1912)

The mutual settlement was purely testamentary and Mrs Garden's provision in favour of her husband and his heirs lapsed upon his predecease; thus, her estate passed to her own heirs in mobilibus ab intestata. The £50 provision in James Garden's will was a non-binding expression of desire, not a precatory trust or debt on Mrs Garden's estate.

Citation
[1912] ScotLR 249
Parties
First Parties (trustees and Executors of James Garden): Rev. John Smith Sloss and another (Garden's Trustees); Second Parties (executor Dative and Heirs of Elizabeth Garden): William Cruickshank and the whole heirs in mobilibus ab intestata of Elizabeth Cruickshank or Garden; Third Parties (heirs of James Garden): The whole heirs in mobilibus ab intestato of James Garden; Fourth Party: The widow of Alexander Garden
Jurisdiction
Scotland
Judgment Date
03 December 1912
Procedural Posture
Special Case (succession/executry) / Judgment (inner House, First Division)
Outcome
First question answered in the affirmative; second and third questions answered in the negative.
Legal Topics
Mutual Settlement, Conditional Institution, Precatory Trust, Intestacy
Succession Wills and Estates Mutual Settlement Conditional Institution Precatory Trust Intestacy

Case Brief

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Parties

Rev. John Smith Sloss and another (Garden's Trustees)

First Parties (trustees and Executors of James Garden)

William Cruickshank and the whole heirs in mobilibus ab intestata of Elizabeth Cruickshank or Garden

Second Parties (executor Dative and Heirs of Elizabeth Garden)

The whole heirs in mobilibus ab intestato of James Garden

Third Parties (heirs of James Garden)

The widow of Alexander Garden

Fourth Party

Procedural Posture

Special Case (succession/executry) / Judgment (inner House, First Division)

Legal Issues

  1. 1 Whether Mrs Elizabeth Cruickshank or Garden died intestate, entitling her heirs to her moveable estate.
  2. 2 Whether the bequest by Mrs Garden in the mutual settlement remained operative after her husband's predecease, entitling James Garden's heirs to her estate.
  3. 3 Whether the provision in James Garden's will for £50 to the widow of his brother Alexander Garden constituted a binding obligation on Mrs Garden's estate.

Ratio Decidendi

The mutual settlement was purely testamentary and Mrs Garden's provision in favour of her husband and his heirs lapsed upon his predecease; thus, her estate passed to her own heirs in mobilibus ab intestata. The £50 provision in James Garden's will was a non-binding expression of desire, not a precatory trust or debt on Mrs Garden's estate.

Court Disposition

First question answered in the affirmative; second and third questions answered in the negative.

Orders

  • Mrs Elizabeth Cruickshank or Garden died intestate; her moveable estate passes to her heirs in mobilibus ab intestata.
  • The mutual settlement did not operate to convey Mrs Garden's estate to James Garden's heirs.