Penny's Trustees v. Pennys and Others [1908] ScotLR 481 (25 February 1908)

Penny's Trustees v. Pennys and Others [1908] ScotLR 481 (25 February 1908)

The fee of the shares of the estate vested in the testator's children a morte testatoris, but subject to defeasance if they predeceased the liferentrix leaving issue; advances to children formed a burden on the share whether falling to the child or those in his right.

Citation
[1908] ScotLR 481
Parties
First Parties: Trustees under the general settlement of James Penny of Park; Second Parties: Surviving children of James Penny of Park and marriage-contract trustees of one of them; Third Parties: Testamentary trustees of James Penny of Lochwood; Fourth Party: Widow of James Penny of Lochwood; Fifth Parties: Tutors and curators to the pupil children of James Penny of Lochwood
Jurisdiction
Scotland
Judgment Date
25 February 1908
Procedural Posture
Special Case / Judgment
Outcome
Questions of law answered: fee vested in children a morte testatoris subject to defeasance; advances formed burden on share.
Legal Topics
Vesting, Defeasance, Conditional Institution of Issue, Advances to Beneficiaries
Succession Trusts Vesting Defeasance Conditional Institution of Issue Advances to Beneficiaries

Case Brief

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Parties

Trustees under the general settlement of James Penny of Park

First Parties

Surviving children of James Penny of Park and marriage-contract trustees of one of them

Second Parties

Testamentary trustees of James Penny of Lochwood

Third Parties

Widow of James Penny of Lochwood

Fourth Party

Tutors and curators to the pupil children of James Penny of Lochwood

Fifth Parties

Procedural Posture

Special Case / Judgment

Legal Issues

  1. 1 Whether the fee of the shares of the estate vested in the testator's children a morte testatoris or was subject to defeasance
  2. 2 Whether payments made to children during the existence of the liferent vested absolutely or formed a burden on the share

Ratio Decidendi

The fee of the shares of the estate vested in the testator's children a morte testatoris, but subject to defeasance if they predeceased the liferentrix leaving issue; advances to children formed a burden on the share whether falling to the child or those in his right.

Court Disposition

Questions of law answered: fee vested in children a morte testatoris subject to defeasance; advances formed burden on share.

Orders

  • Second branch of first question of law answered in the affirmative; first and third branches thereof answered in the negative; second question of law (as amended) answered in the affirmative.