Milligan and Another (Hannay's Trustees) [1913] ScotLR 310 (15 January 1913)

Milligan and Another (Hannay's Trustees) [1913] ScotLR 310 (15 January 1913)

The heirs in mobilibus are to be ascertained at the date of the testator's death, as there is no sufficient indication in the deed to rebut the strong presumption that the class is fixed at that time; the exclusion of a vested right in the capital to the children does not alter this result.

Citation
[1913] ScotLR 310
Parties
First Parties: David Macbeth Moir Milligan and another, testamentary trustees of the deceased John Hannay; Second Party: Peter Hannay, only son of the testator; Third Party: Miss Jemima Graham, executrix of the deceased Miss Elizabeth Harriet Caroline Hannay, only daughter of the testator
Jurisdiction
Scotland
Judgment Date
15 January 1913
Procedural Posture
Special Case (trust/inheritance) / Inner House, Second Division, Court of Session (judgment)
Outcome
Second question answered in the affirmative (heirs in mobilibus ascertained at testator's death); third question answered in the negative (not at death of Miss Hannay).
Legal Topics
Vesting, Heirs in Mobilibus, Construction of Testamentary Instruments, Fee and Liferent, Intestate Succession
Succession Law Trusts and Estates Vesting Heirs in Mobilibus Construction of Testamentary Instruments Fee and Liferent Intestate Succession

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Parties

David Macbeth Moir Milligan and another, testamentary trustees of the deceased John Hannay

First Parties

Peter Hannay, only son of the testator

Second Party

Miss Jemima Graham, executrix of the deceased Miss Elizabeth Harriet Caroline Hannay, only daughter of the testator

Third Party

Procedural Posture

Special Case (trust/inheritance) / Inner House, Second Division, Court of Session (judgment)

Legal Issues

  1. 1 At what date are the testator's 'heirs in mobilibus' to be ascertained for the purpose of succession to the residue of the estate?
  2. 2 Does the clause excluding the children from a vested right in the capital affect the ascertainment of heirs in mobilibus?

Ratio Decidendi

The heirs in mobilibus are to be ascertained at the date of the testator's death, as there is no sufficient indication in the deed to rebut the strong presumption that the class is fixed at that time; the exclusion of a vested right in the capital to the children does not alter this result.

Court Disposition

Second question answered in the affirmative (heirs in mobilibus ascertained at testator's death); third question answered in the negative (not at death of Miss Hannay).

Orders

  • The parties entitled to the share liferented by Miss Hannay are those who were the heirs in mobilibus of the testator at the date of his death.