Miller's Trustees v Brown [1933] ScotCS CSIH_2 (13 July 1933)

Miller's Trustees v Brown [1933] ScotCS CSIH_2 (13 July 1933)

In the absence of an express survivorship clause and in light of the declaration that issue of predeceasing children are entitled to the share that would have fallen to their parent by survivance, the issue are entitled to the share their parent would have taken had they survived the widow, including a proportion of lapsed shares. The residue is to be divided per stirpes among the surviving children and the issue of predeceasing children, resulting in equal division among the four lines of descent.

Citation
[1933] ScotCS CSIH_2
Parties
Trustees (applicants): Miller's Trustees; Respondent: Brown; Interested Parties: Second and Third Parties (surviving children); Interested Party: Fifth Party (issue of predeceasing child); Interested Parties: Sixth Parties (issue of another predeceasing child)
Jurisdiction
Scotland
Judgment Date
13 July 1933
Procedural Posture
Court of Session (inner House) Civil Appeal / Judgment After Full Hearing
Outcome
The contention of the fifth and sixth parties (issue of predeceasing children) is affirmed; the residue is to be divided into four equal parts per stirpes among the surviving children and the issue of predeceasing children.
Legal Topics
Interpretation of Testamentary Settlements, Class Gifts to Children, Accretion and Survivorship in Succession, Rights of Issue of Predeceasing Beneficiaries, Vesting of Interests in Trust Estates
Trusts and Estates Succession Law Property Law Interpretation of Testamentary Settlements Class Gifts to Children Accretion and Survivorship in Succession Rights of Issue of Predeceasing Beneficiaries Vesting of Interests in Trust Estates

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Parties

Miller's Trustees

Trustees (applicants)

Brown

Respondent

Second and Third Parties (surviving children)

Interested Parties

Fifth Party (issue of predeceasing child)

Interested Party

Sixth Parties (issue of another predeceasing child)

Interested Parties

Procedural Posture

Court of Session (inner House) Civil Appeal / Judgment After Full Hearing

Legal Issues

  1. 1 How should the residue of the testator's estate be divided among surviving children and issue of predeceasing children?
  2. 2 Does the declaration in the settlement entitle issue of predeceasing children to only their parent's original share or also to accrescing shares?
  3. 3 Is there an implied survivorship clause in the settlement affecting the computation of shares?

Ratio Decidendi

In the absence of an express survivorship clause and in light of the declaration that issue of predeceasing children are entitled to the share that would have fallen to their parent by survivance, the issue are entitled to the share their parent would have taken had they survived the widow, including a proportion of lapsed shares. The residue is to be divided per stirpes among the surviving children and the issue of predeceasing children, resulting in equal division among the four lines of descent.

Court Disposition

The contention of the fifth and sixth parties (issue of predeceasing children) is affirmed; the residue is to be divided into four equal parts per stirpes among the surviving children and the issue of predeceasing children.

Orders

  • The residue of the estate is to be divided into four equal parts per stirpes among the two surviving children and the issue of the two predeceasing children.
  • The shares of the three children who predeceased the widow without issue lapse and do not accrete to the surviving children.