Burnett's Trustees v. Burnett and Others [1908] ScotLR 202 (28 November 1908)

Burnett's Trustees v. Burnett and Others [1908] ScotLR 202 (28 November 1908)

Charles John Burnett was a fiar, albeit with limited powers, and the fee vested in him. No right vested in Mary Erskine Burnett or Stuart Moubray Burnett, so their testamentary assignees had no claim. Upon Charles John Burnett's death without issue, the heirs of Mary and Stuart Burnett were entitled to the property as conditional institutes under the disposition, not their assignees.

Citation
[1908] ScotLR 202
Parties
First Parties: John Alexander Burnett and another, Trustees under the trust-disposition and settlement of Mary Erskine Burnett; Second Parties: Letitia Wilkins Burnett and another, Executors of Stuart Mowbray Burnett; Third Parties: Alexander George Burnett of Kemnay and John George Burnett of Powis
Jurisdiction
Scotland
Judgment Date
28 November 1908
Procedural Posture
Special Case (court of Session, Scotland) / Judgment (inner House, Second Division)
Outcome
First question answered in the negative; second question answered in the affirmative. The heirs of Mary Erskine Burnett and Stuart Moubray Burnett are entitled to the property as conditional institutes; testamentary assignees are excluded.
Legal Topics
Vesting of Heritable Property, Conditional Institution, Limited Fee, Bequest With Limited Powers of Disposal, Entitlement of Heirs Vs. Testamentary Assignees
Succession Law Property Law Vesting of Heritable Property Conditional Institution Limited Fee Bequest With Limited Powers of Disposal Entitlement of Heirs Vs. Testamentary Assignees

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

John Alexander Burnett and another, Trustees under the trust-disposition and settlement of Mary Erskine Burnett

First Parties

Letitia Wilkins Burnett and another, Executors of Stuart Mowbray Burnett

Second Parties

Alexander George Burnett of Kemnay and John George Burnett of Powis

Third Parties

Procedural Posture

Special Case (court of Session, Scotland) / Judgment (inner House, Second Division)

Legal Issues

  1. 1 Whether Mary Erskine Burnett and Stuart Moubray Burnett took a vested right in the property under the mortis causa disposition
  2. 2 Whether the property vested in their testamentary assignees or in their heirs as conditional institutes

Ratio Decidendi

Charles John Burnett was a fiar, albeit with limited powers, and the fee vested in him. No right vested in Mary Erskine Burnett or Stuart Moubray Burnett, so their testamentary assignees had no claim. Upon Charles John Burnett's death without issue, the heirs of Mary and Stuart Burnett were entitled to the property as conditional institutes under the disposition, not their assignees.

Court Disposition

First question answered in the negative; second question answered in the affirmative. The heirs of Mary Erskine Burnett and Stuart Moubray Burnett are entitled to the property as conditional institutes; testamentary assignees are excluded.

Orders

  • Heirs of Mary Erskine Burnett and Stuart Moubray Burnett to succeed to the property in equal shares as conditional institutes under the disposition.