Mackenzie's Trustees v. Georgeson [1923] ScotLR 352 (01 March 1923)

Mackenzie's Trustees v. Georgeson [1923] ScotLR 352 (01 March 1923)

The words 'and their respective heirs and executors' in the will created a true conditional institution, not a vesting subject to defeasance. Vesting did not occur in Henry Somerset Mackenzie a morte testatoris; instead, the fund was payable to his legal heirs in mobilibus as at the death of the liferenter. The expression 'heirs and executors' refers to legal heirs, not executors-nominate.

Citation
[1923] ScotLR 352
Parties
Pursuers and Real Raisers: George Gibson Soote and another, testamentary trustees of James Mackenzie; Defenders (claimants): Mrs Elizabeth Sarah Mackenzie or Georgeson, Mrs Hope Mackenzie or Van Millingen, Henry Grant Madan Conybeare (receiver for Henry Holt William Mackenzie); Defender (claimant/respondent): Mrs Emma Whyte (widow and executrix of Henry Somerset Mackenzie)
Jurisdiction
Scotland
Judgment Date
01 March 1923
Procedural Posture
Action of Multiplepoinding and Exoneration / Inner House Appeal From Lord Ordinary's Interlocutor
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; claim of Mrs Emma Whyte repelled; claim of Mrs Georgeson and others sustained.
Legal Topics
Vesting, Conditional Institution, Construction of Wills, Heirs and Executors, Intestacy
Succession Trusts and Estates Vesting Conditional Institution Construction of Wills Heirs and Executors Intestacy

Case Brief

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Parties

George Gibson Soote and another, testamentary trustees of James Mackenzie

Pursuers and Real Raisers

Mrs Elizabeth Sarah Mackenzie or Georgeson, Mrs Hope Mackenzie or Van Millingen, Henry Grant Madan Conybeare (receiver for Henry Holt William Mackenzie)

Defenders (claimants)

Mrs Emma Whyte (widow and executrix of Henry Somerset Mackenzie)

Defender (claimant/respondent)

Procedural Posture

Action of Multiplepoinding and Exoneration / Inner House Appeal From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the words 'and their respective heirs and executors' in the will created a conditional institution or a vesting subject to defeasance.
  2. 2 Whether the fund vested in Henry Somerset Mackenzie a morte testatoris or only in his heirs and executors at the death of the liferenter.
  3. 3 Whether 'heirs and executors' refers to legal heirs or executors-nominate.

Ratio Decidendi

The words 'and their respective heirs and executors' in the will created a true conditional institution, not a vesting subject to defeasance. Vesting did not occur in Henry Somerset Mackenzie a morte testatoris; instead, the fund was payable to his legal heirs in mobilibus as at the death of the liferenter. The expression 'heirs and executors' refers to legal heirs, not executors-nominate.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; claim of Mrs Emma Whyte repelled; claim of Mrs Georgeson and others sustained.

Orders

  • Recall the interlocutor of the Lord Ordinary.
  • Repel the claim for Mrs Emma Whyte.