Montgomerie-Fleming's Trustees v. Montgomerie-Fleming's Trustees [1922] ScotLR 492 (15 July 1922)

Montgomerie-Fleming's Trustees v. Montgomerie-Fleming's Trustees [1922] ScotLR 492 (15 July 1922)

The destination to Major Montgomerie-Fleming 'and his heirs and assignees' was a conditional institution, and as neither condition (his marriage or the marriage of all his sisters) was purified before his death, no right of fee vested in him. The surviving sisters, as his heirs, are entitled as conditional institutes to the property. The addition of 'assignees' did not alter this result, as the Major had no vested right to assign.

Citation
[1922] ScotLR 492
Parties
First Parties: George Porteous Scott and others, testamentary trustees of James Brown Montgomerie-Fleming of Kelvinside, Glasgow; Second Parties: Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, married daughters of the testator, along with the marriage-contract trustees of two of these daughters, their assignees; Third Parties: Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, testamentary trustees of Major James Brown Montgomerie-Fleming, son of J. B. Montgomerie-Fleming of Kelvinside
Jurisdiction
Scotland
Judgment Date
15 July 1922
Procedural Posture
Special Case (court of Session, Inner House, Second Division) / Judgment on Construction of Will and Vesting of Property
Outcome
First question answered in the negative; second question (a) answered in the affirmative; second question (b) answered in the negative.
Legal Topics
Vesting of Property, Conditional Institution, Construction of Testamentary Dispositions, Heirs and Assignees, Destination Over
Succession Trusts and Estates Vesting of Property Conditional Institution Construction of Testamentary Dispositions Heirs and Assignees Destination Over

Case Brief

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Parties

George Porteous Scott and others, testamentary trustees of James Brown Montgomerie-Fleming of Kelvinside, Glasgow

First Parties

Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, married daughters of the testator, along with the marriage-contract trustees of two of these daughters, their assignees

Second Parties

Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, testamentary trustees of Major James Brown Montgomerie-Fleming, son of J. B. Montgomerie-Fleming of Kelvinside

Third Parties

Procedural Posture

Special Case (court of Session, Inner House, Second Division) / Judgment on Construction of Will and Vesting of Property

Legal Issues

  1. 1 Whether Major James Brown Montgomerie-Fleming was vested with a right of fee in Kelvinside House at the date of his death
  2. 2 Whether the surviving sisters or their assignees are entitled as conditional institutes to a conveyance of the property
  3. 3 Effect of the words 'and his heirs and assignees' in the will

Ratio Decidendi

The destination to Major Montgomerie-Fleming 'and his heirs and assignees' was a conditional institution, and as neither condition (his marriage or the marriage of all his sisters) was purified before his death, no right of fee vested in him. The surviving sisters, as his heirs, are entitled as conditional institutes to the property. The addition of 'assignees' did not alter this result, as the Major had no vested right to assign.

Court Disposition

First question answered in the negative; second question (a) answered in the affirmative; second question (b) answered in the negative.

Orders

  • No right of fee vested in Major James Brown Montgomerie-Fleming at his death.
  • The surviving sisters or their assignees are entitled as conditional institutes to a conveyance of Kelvinside House, subject to existing burdens.