Smith's Trustees v. Smith's Trustees and Others [1905] ScotLR 42_657 (23 June 1905)

Smith's Trustees v. Smith's Trustees and Others [1905] ScotLR 42_657 (23 June 1905)

The Court held that the heirs and assignees of Ann Smith were proper substitutes to be ascertained at the date of the death of her infant daughter, that 'survivors or survivor' in the context of the settlement meant 'others or other,' and that 'their foresaids' in the dispositive clause imported the full destination as in the preceding clauses.

Citation
[1905] ScotLR 42_657
Parties
First Party: James Boyd and Campbell Barr (Trustees of John Smith); Second Party: John Edmiston and James Boyd junior (Trustees of Andrew Smith senior); Third Party: Richard Edmiston and James Boyd junior (Trustees of Andrew Smith junior); Fourth Party: Cochran Barr Cross; Fifth Party: Andrew Smith tertius
Jurisdiction
Scotland
Judgment Date
23 June 1905
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Final Judgment
Outcome
Subjects IV awarded to the third party; Subjects V divided equally between third and fourth parties; Subjects VI, three-fourths to third party and one-fourth to fourth party; unnecessary to answer the fifteen questions as put.
Legal Topics
Testamentary Succession, Marriage Contract, Heritable Property, Conditional Institution, Substitution, Interpretation of 'survivor' and 'foresaids'
Succession Property Law Family Law Testamentary Succession Marriage Contract Heritable Property Conditional Institution Substitution +1 more

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Parties

James Boyd and Campbell Barr (Trustees of John Smith)

First Party

John Edmiston and James Boyd junior (Trustees of Andrew Smith senior)

Second Party

Richard Edmiston and James Boyd junior (Trustees of Andrew Smith junior)

Third Party

Cochran Barr Cross

Fourth Party

Andrew Smith tertius

Fifth Party

Procedural Posture

Special Case (court of Session, Inner House, First Division) / Final Judgment

Legal Issues

  1. 1 Whether the heirs and assignees of Ann Smith in the marriage-contract were conditional institutes or proper substitutes and at what date they are to be ascertained
  2. 2 Interpretation of 'survivors or survivor' in the testator's settlement
  3. 3 Meaning of 'their foresaids' in the dispositive clause

Ratio Decidendi

The Court held that the heirs and assignees of Ann Smith were proper substitutes to be ascertained at the date of the death of her infant daughter, that 'survivors or survivor' in the context of the settlement meant 'others or other,' and that 'their foresaids' in the dispositive clause imported the full destination as in the preceding clauses.

Court Disposition

Subjects IV awarded to the third party; Subjects V divided equally between third and fourth parties; Subjects VI, three-fourths to third party and one-fourth to fourth party; unnecessary to answer the fifteen questions as put.

Orders

  • Subjects IV to third party (trustees of Andrew Smith junior)
  • Subjects V, one-half to third party and one-half to fourth party (Cochran Barr Cross)