Young's Executrix and Others v. Gray's Hospital, Elgin, and Others [1917] ScotLR 554 (19 July 1917)

Young's Executrix and Others v. Gray's Hospital, Elgin, and Others [1917] ScotLR 554 (19 July 1917)

The proviso in the will, which purported to suspend the vesting of the fee pending a contingency, was a feudal impossibility under Scots law. There was no effective qualification of the direct gift of the fee to the sisters, and thus the fee vested in them a morte testatoris. The law does not permit a vacant fee in heritage, and the doctrine of vesting subject to defeasance does not apply in the absence of a trust.

Citation
[1917] ScotLR 554
Parties
First Party: Jane Marjorie Young (Executrix of Robert Young); Second Party: Jane Marjorie Young (as individual); Third Party: Isabella Thurburn Young; Fourth Party: Sir Archibald Williamson, Bart. and others, Trustees of Gray's Hospital, Elgin; Fifth Party: Elgin Guildry Fund Society
Jurisdiction
Scotland
Judgment Date
19 July 1917
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment on Interpretation of Will and Vesting of Heritable Estate
Outcome
First question answered in the affirmative (estate vested in sisters in fee a morte testatoris); second question answered in the negative (did not vest in Gray's Hospital subject to liferent/divestiture).
Legal Topics
Vesting of Heritable Property, Fee and Liferent, Conditional Bequests, Defeasance, Interpretation of Wills
Succession Law Property Law Vesting of Heritable Property Fee and Liferent Conditional Bequests Defeasance Interpretation of Wills

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Parties

Jane Marjorie Young (Executrix of Robert Young)

First Party

Jane Marjorie Young (as individual)

Second Party

Isabella Thurburn Young

Third Party

Sir Archibald Williamson, Bart. and others, Trustees of Gray's Hospital, Elgin

Fourth Party

Elgin Guildry Fund Society

Fifth Party

Procedural Posture

Special Case (court of Session, Inner House, First Division) / Judgment on Interpretation of Will and Vesting of Heritable Estate

Legal Issues

  1. 1 Whether the estate of Fleurs vested in fee in the testator's sisters a morte testatoris or in Gray's Hospital subject to liferent and divestiture
  2. 2 Whether the proviso in the will validly qualified the absolute gift of the fee to the sisters

Ratio Decidendi

The proviso in the will, which purported to suspend the vesting of the fee pending a contingency, was a feudal impossibility under Scots law. There was no effective qualification of the direct gift of the fee to the sisters, and thus the fee vested in them a morte testatoris. The law does not permit a vacant fee in heritage, and the doctrine of vesting subject to defeasance does not apply in the absence of a trust.

Court Disposition

First question answered in the affirmative (estate vested in sisters in fee a morte testatoris); second question answered in the negative (did not vest in Gray's Hospital subject to liferent/divestiture).

Orders

  • The estate of Fleurs vested in fee in the second and third parties (the sisters) pro indiviso and in the survivor of them a morte testatoris.
  • No effective qualification of the direct gift of the fee to the sisters.