Nicol's Trustees v. Farquhar and Others [1918] ScotLR 303 (28 February 1918)

Nicol's Trustees v. Farquhar and Others [1918] ScotLR 303 (28 February 1918)

The majority held that the will did not confer a vested right of fee on the grandchildren but only a liferent with a limited power of disposal by marriage contract or testamentary writing; since Lieutenant Farquhar died intestate and unmarried without exercising the power, his share did not vest and fell into intestacy, subject to the liferent and partial defeasance provisions.

Citation
[1918] ScotLR 303
Parties
First Parties: Mary Helen Campbell Nicol and others, testamentary trustees of the late Mrs Jane Chalmers or Nicol; Second Party: Albert Farquhar, father of the late Lieutenant Alastair Charles Nicol Farquhar, R.N., by Mrs Alice Jane Nicol or Farquhar, as executor-dative of his son; Third Parties: Albert Farquhar and others, marriage-contract trustees of Mrs Adeline Mary Farquhar or Todd; Fourth Party: David Montague Alexander Chalmers, sole surviving marriage-contract trustee of Mrs Annie Chalmers Nicol or Thorneycroft; Fifth Party: Mary Helen Campbell Nicol, unmarried daughter of Mrs Jane Chalmers or Nicol; Sixth Party: Albert Farquhar as an individual
Jurisdiction
Scotland
Judgment Date
28 February 1918
Procedural Posture
Special Case (court of Session, Inner House, Second Division) / Judgment After Hearing Before Seven Judges
Outcome
Majority: No vested right of fee; share fell into intestacy. Minority: Vested fee conferred.
Legal Topics
Vesting of Interests, Construction of Wills, Fee or Liferent, Powers of Disposal, Intestacy
Succession Trusts and Estates Vesting of Interests Construction of Wills Fee or Liferent Powers of Disposal Intestacy

Case Brief

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Parties

Mary Helen Campbell Nicol and others, testamentary trustees of the late Mrs Jane Chalmers or Nicol

First Parties

Albert Farquhar, father of the late Lieutenant Alastair Charles Nicol Farquhar, R.N., by Mrs Alice Jane Nicol or Farquhar, as executor-dative of his son

Second Party

Albert Farquhar and others, marriage-contract trustees of Mrs Adeline Mary Farquhar or Todd

Third Parties

David Montague Alexander Chalmers, sole surviving marriage-contract trustee of Mrs Annie Chalmers Nicol or Thorneycroft

Fourth Party

Mary Helen Campbell Nicol, unmarried daughter of Mrs Jane Chalmers or Nicol

Fifth Party

Albert Farquhar as an individual

Sixth Party

Procedural Posture

Special Case (court of Session, Inner House, Second Division) / Judgment After Hearing Before Seven Judges

Legal Issues

  1. 1 Whether Lieutenant A. C. N. Farquhar had a vested right of fee in one-half of the residue of the testatrix's estate or only a liferent with limited power of disposal; whether the residue fell into intestacy on his death without exercising the power of disposal.

Ratio Decidendi

The majority held that the will did not confer a vested right of fee on the grandchildren but only a liferent with a limited power of disposal by marriage contract or testamentary writing; since Lieutenant Farquhar died intestate and unmarried without exercising the power, his share did not vest and fell into intestacy, subject to the liferent and partial defeasance provisions.

Court Disposition

Majority: No vested right of fee; share fell into intestacy. Minority: Vested fee conferred.

Orders

  • Branch (a) of the first question of law answered in the negative: Lieutenant Farquhar did not have a vested right of fee.
  • Branch (b) of the first question answered in the affirmative: The fee forms intestate estate of the testatrix, subject to liferent and partial defeasance.