Searoy's Trustees v. Searoy and Others [1907] ScotLR 536 (14 March 1907)

Searoy's Trustees v. Searoy and Others [1907] ScotLR 536 (14 March 1907)

The residue of the estate vested at the testator's death in the families of John Searcy and William Brown, subject to defeasance if the testator's daughter left issue. The division was per stirpes between the two families and per capita within each family. 'Family' was confined to immediate issue. The fact that the destination-over was in a separate clause did not alter the application of vesting subject to defeasance.

Citation
[1907] ScotLR 536
Parties
Pursuers/trustees: John Watt and others (Searoy's Trustees); Claimant and Reclaimer: Albert John Allbuary (executor of Mrs Elizabeth Carpenter or Allbuary); Claimants: Trustees of Mrs Mary Ann Ella Searcy or Murray; Claimants: Arthur John Searcy, Mrs Maud Ann Searcy or Physick, Mrs Edith Rebecca Searcy or Dickson; Claimants: Trustees of William Frederick Searcy; Claimants: John William Searcy and his Guardian
Jurisdiction
Scotland
Judgment Date
14 March 1907
Procedural Posture
Multiplepoinding and Exoneration (succession/trust) / Appeal (inner House, First Division)
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled and new interlocutor pronounced.
Legal Topics
Vesting Subject to Defeasance, Division Per Stirpes or Per Capita, Interpretation of 'family' in Testamentary Dispositions, Intestacy, Construction of Testamentary Clauses
Succession Trusts and Estates Vesting Subject to Defeasance Division Per Stirpes or Per Capita Interpretation of 'family' in Testamentary Dispositions Intestacy Construction of Testamentary Clauses

Case Brief

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Parties

John Watt and others (Searoy's Trustees)

Pursuers/trustees

Albert John Allbuary (executor of Mrs Elizabeth Carpenter or Allbuary)

Claimant and Reclaimer

Trustees of Mrs Mary Ann Ella Searcy or Murray

Claimants

Arthur John Searcy, Mrs Maud Ann Searcy or Physick, Mrs Edith Rebecca Searcy or Dickson

Claimants

Trustees of William Frederick Searcy

Claimants

John William Searcy and his Guardian

Claimants

Procedural Posture

Multiplepoinding and Exoneration (succession/trust) / Appeal (inner House, First Division)

Legal Issues

  1. 1 Whether vesting of the residue occurred at the testator's death subject to defeasance or was postponed until the death of the liferentrix
  2. 2 Whether division among 'families' was per stirpes or per capita
  3. 3 Whether 'family' includes grandchildren or only immediate issue

Ratio Decidendi

The residue of the estate vested at the testator's death in the families of John Searcy and William Brown, subject to defeasance if the testator's daughter left issue. The division was per stirpes between the two families and per capita within each family. 'Family' was confined to immediate issue. The fact that the destination-over was in a separate clause did not alter the application of vesting subject to defeasance.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled and new interlocutor pronounced.

Orders

  • Find that vesting of the fee of the residue took place at the testator's death in the families of John Searcy and William Brown, subject to defeasance.
  • Find that the one-half share of residue destined to the family of William Brown falls to Albert John Allbuary as executor of Mrs Elizabeth Carpenter or Allbuary.