Sword's Trustees v. Sword [1902] ScotLR 39_846 (17 July 1902)

Sword's Trustees v. Sword [1902] ScotLR 39_846 (17 July 1902)

The will's direction regarding lapsed or unclaimed shares constituted a survivorship clause, postponing vesting until the widow's death. The share of a legatee who predeceased the widow leaving issue passed to the issue; the share of a legatee who predeceased the widow without issue accresced to surviving residuary legatees and issue per stirpes.

Citation
[1902] ScotLR 39_846
Parties
Trustees (applicants): Sword's Trustees; Residuary Legatees (respondents): Sword (various legatees and issue); Executors (claimants): Executors of Andrew Sword (nephew); Claimants: Surviving children of Andrew Sword (nephew); Next of Kin (claimant): Mrs Thomasina Sword or Sinclair; Ultimus Haeres (claimant): Lord Advocate (representing the Crown)
Jurisdiction
Scotland
Judgment Date
17 July 1902
Procedural Posture
Special Case (succession/trusts) / Inner House, Second Division, Court of Session (final Judgment)
Outcome
First question of law answered in the negative; second question answered in the affirmative; third question answered by finding the share of Andrew Sword (grandnephew) falls to surviving residuary legatees and issue per stirpes.
Legal Topics
Vesting of Legacies, Accretion, Survivorship Clause, Destination Over, Lapsed Legacies
Succession Trusts and Estates Vesting of Legacies Accretion Survivorship Clause Destination Over Lapsed Legacies

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 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Sword's Trustees

Trustees (applicants)

Sword (various legatees and issue)

Residuary Legatees (respondents)

Executors of Andrew Sword (nephew)

Executors (claimants)

Surviving children of Andrew Sword (nephew)

Claimants

Mrs Thomasina Sword or Sinclair

Next of Kin (claimant)

Lord Advocate (representing the Crown)

Ultimus Haeres (claimant)

Procedural Posture

Special Case (succession/trusts) / Inner House, Second Division, Court of Session (final Judgment)

Legal Issues

  1. 1 Whether the share of residue bequeathed to Andrew Sword (nephew) vested absolutely on the testator's death or was subject to a destination-over in favour of his issue if he predeceased the period of distribution.
  2. 2 Whether the share of residue bequeathed to Andrew Sword (grandnephew) vested in him on the testator's death or lapsed and accresced to surviving residuary legatees or fell to intestacy.

Ratio Decidendi

The will's direction regarding lapsed or unclaimed shares constituted a survivorship clause, postponing vesting until the widow's death. The share of a legatee who predeceased the widow leaving issue passed to the issue; the share of a legatee who predeceased the widow without issue accresced to surviving residuary legatees and issue per stirpes.

Court Disposition

First question of law answered in the negative; second question answered in the affirmative; third question answered by finding the share of Andrew Sword (grandnephew) falls to surviving residuary legatees and issue per stirpes.

Orders

  • Declare that the share of Andrew Sword (nephew) falls to his surviving children.
  • Declare that the share of Andrew Sword (grandnephew) falls to the residuary legatees who survived the widow and the issue per stirpes of any surviving legatees who predeceased her.