Wemyss v. Wemyss' Trustees [1920] ScotLR 116 (30 October 1920)

Wemyss v. Wemyss' Trustees [1920] ScotLR 116 (30 October 1920)

The condition prohibiting Lady Lilian Wemyss or members of the Paulet family from residing at Wemyss Castle or any part of the estate is not void for uncertainty or as being contra bonos mores; 'reside' is a word with an ordinary meaning, and the court can interpret its application to particular facts. The forfeiture clause is valid and enforceable, and the court will not substitute new wording or attempt exhaustive definition. Visits for short periods do not constitute residence, but the court cannot define in advance the precise acts constituting residence.

Citation
[1920] ScotLR 116
Parties
Pursuer: Captain Michael John Wemyss; Defenders: Lady Eva Wemyss and others, Trustees of Randolph Gordon Erskine Wemyss
Jurisdiction
Scotland
Judgment Date
30 October 1920
Procedural Posture
Action of Declarator / Inner House, First Division, Court of Session, Reclaiming Motion
Outcome
Defenders assoilzied from the first conclusion of the summons; alternative conclusion dismissed.
Legal Topics
Validity of Forfeiture Clause, Interpretation of 'reside' in Testamentary Conditions, Uncertainty in Conditions, Contra Bonos Mores
Succession Trusts Wills Validity of Forfeiture Clause Interpretation of 'reside' in Testamentary Conditions Uncertainty in Conditions Contra Bonos Mores

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Parties

Captain Michael John Wemyss

Pursuer

Lady Eva Wemyss and others, Trustees of Randolph Gordon Erskine Wemyss

Defenders

Procedural Posture

Action of Declarator / Inner House, First Division, Court of Session, Reclaiming Motion

Legal Issues

  1. 1 Whether the condition prohibiting residence is void for uncertainty
  2. 2 Whether the condition is void as contra bonos mores
  3. 3 Interpretation of 'reside' in the context of the will

Ratio Decidendi

The condition prohibiting Lady Lilian Wemyss or members of the Paulet family from residing at Wemyss Castle or any part of the estate is not void for uncertainty or as being contra bonos mores; 'reside' is a word with an ordinary meaning, and the court can interpret its application to particular facts. The forfeiture clause is valid and enforceable, and the court will not substitute new wording or attempt exhaustive definition. Visits for short periods do not constitute residence, but the court cannot define in advance the precise acts constituting residence.

Court Disposition

Defenders assoilzied from the first conclusion of the summons; alternative conclusion dismissed.

Orders

  • Dismissal of pursuer's first and alternative conclusions
  • Affirmation of Lord Ordinary's interlocutor in so far as it assoilzied defenders