Cochrane's Exr v Cochrane [1946] ScotCS CSIH_1 (06 December 1946)

Cochrane's Exr v Cochrane [1946] ScotCS CSIH_1 (06 December 1946)

The will's unqualified bequest to the sister confers a full fee, not a liferent or restricted fee. The doctrine of a 'restricted fee' is rejected as unsound. The charities take only as substitutes or conditional institutes if the sister predeceases the testator or as to what remains at her death. Denholm's Trustees and Heavyside v. Smith are overruled as bad law.

Citation
[1946] ScotCS CSIH_1
Parties
Applicant: Cochrane's Executrix; Respondent: Cochrane
Jurisdiction
Scotland
Judgment Date
06 December 1946
Procedural Posture
Testate Succession Dispute / Appellate Judgment
Outcome
Appeal allowed; question 2(b) answered in the affirmative; alternative contentions negatived.
Legal Topics
Construction of Wills, Testate Succession, Nature of Bequest, Fee Vs Liferent, Doctrine of Repugnancy
Succession Law Property Law Construction of Wills Testate Succession Nature of Bequest Fee Vs Liferent Doctrine of Repugnancy

Case Brief

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Parties

Cochrane's Executrix

Applicant

Cochrane

Respondent

Procedural Posture

Testate Succession Dispute / Appellate Judgment

Legal Issues

  1. 1 What is the nature of the interest taken by the testator's sister under the will?
  2. 2 Does the will confer a full fee, a restricted fee, a liferent, or a liferent with power of sale and consumption?
  3. 3 Should the decisions in Denholm's Trustees and Heavyside v. Smith be overruled?

Ratio Decidendi

The will's unqualified bequest to the sister confers a full fee, not a liferent or restricted fee. The doctrine of a 'restricted fee' is rejected as unsound. The charities take only as substitutes or conditional institutes if the sister predeceases the testator or as to what remains at her death. Denholm's Trustees and Heavyside v. Smith are overruled as bad law.

Court Disposition

Appeal allowed; question 2(b) answered in the affirmative; alternative contentions negatived.

Orders

  • Second party (sister) takes a fee as institute under the will.
  • Denholm's Trustees and Heavyside v. Smith overruled.