Duff's Trustees and Others v. Leighton's Executor [1908] ScotLR 349 (23 January 1908)

Duff's Trustees and Others v. Leighton's Executor [1908] ScotLR 349 (23 January 1908)

Vesting of the share did not occur until the death of the liferentrix. The survivorship clause applies at the period of division. As Mrs Leighton and her child both predeceased the liferentrix, neither had a vested right, and the share passes to the surviving nephews and nieces.

Citation
[1908] ScotLR 349
Parties
First Parties: John Stewart Duff and others, trustees of Mrs Agnes Duff; Second Parties: Husband and children of Mrs Ann Scott; Third Party: Robert Leighton, executor-dative qua next-of-kin of Eliza Robina Garland Leighton, and as an individual; Fourth Party: Judicial factor on the trust estate of Thomas Garland; Fifth Parties: Testamentary trustees of Joseph Garland junior; Sixth Parties: Testamentary trustees of Mrs Christina Lowden
Jurisdiction
Scotland
Judgment Date
23 January 1908
Procedural Posture
Special Case / Final Judgment
Outcome
First alternative answered in the negative, second in the affirmative; Mrs Leighton had no vested right at her death.
Legal Topics
Vesting, Survivorship Clause, Interpretation of 'without Issue', Direction to Sell Heritable Property, Division of Proceeds
Succession Trusts Vesting Survivorship Clause Interpretation of 'without Issue' Direction to Sell Heritable Property Division of Proceeds

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Parties

John Stewart Duff and others, trustees of Mrs Agnes Duff

First Parties

Husband and children of Mrs Ann Scott

Second Parties

Robert Leighton, executor-dative qua next-of-kin of Eliza Robina Garland Leighton, and as an individual

Third Party

Judicial factor on the trust estate of Thomas Garland

Fourth Party

Testamentary trustees of Joseph Garland junior

Fifth Parties

Testamentary trustees of Mrs Christina Lowden

Sixth Parties

Procedural Posture

Special Case / Final Judgment

Legal Issues

  1. 1 Whether Elizabeth Garland or Leighton had a vested right to one-sixth share of the property at her death
  2. 2 Whether vesting was postponed until the death of the liferentrix

Ratio Decidendi

Vesting of the share did not occur until the death of the liferentrix. The survivorship clause applies at the period of division. As Mrs Leighton and her child both predeceased the liferentrix, neither had a vested right, and the share passes to the surviving nephews and nieces.

Court Disposition

First alternative answered in the negative, second in the affirmative; Mrs Leighton had no vested right at her death.

Orders

  • Proceeds of the property to be divided among nephews and nieces surviving the liferentrix as per the trust deed.