Waddell's Judicial Factor v. Waddell and Others [1924] ScotLR 675 (10 July 1924)

Waddell's Judicial Factor v. Waddell and Others [1924] ScotLR 675 (10 July 1924)

The majority held that the right to collate, being a personal privilege of the heir-at-law who is also next-of-kin, is not generally transmissible to a universal disponee unless exercised by irrevocable declaration during the heir's lifetime. However, in this case, the second party, as general disponee of the brother, is entitled to demand an equal share of the testator's moveables upon collating the heritable estate, and upon collation, one-half of the heritable estate remains heritable in the brother's succession and one-half of the moveable estate forms part of the brother's moveable estate.

Citation
[1924] ScotLR 675
Parties
First Party: Thomas Gibson, Writer to the Signet, Falkirk, judicial factor on the trust estate of the late James Buchanan Waddell; Second Party: George Waddell (secundus), nephew of the testator; Third Party: Mrs Alice Dunn, administratrix of the estate of Mrs Agnes Waddell or Dunn; Fourth Parties: Thomas Waddell and others, younger brothers and sisters and representatives of deceased younger brothers and sisters of the second party
Jurisdiction
Scotland
Judgment Date
10 July 1924
Procedural Posture
Special Case / Inner House, First Division, Court of Session
Outcome
Majority: The second party is entitled to collate and claim a share of the moveable estate; upon collation, one-half of the heritable estate remains heritable in the brother's succession and one-half of the moveable estate forms part of the brother's moveable estate. Lord President dissenting: The right to collate...
Legal Topics
Collatio Inter Haeredes, Testate Succession, Intestate Succession, Vesting of Interests, Transmissibility of Collation Rights
Succession Law Trusts and Estates Collatio Inter Haeredes Testate Succession Intestate Succession Vesting of Interests Transmissibility of Collation Rights

Case Brief

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Parties

Thomas Gibson, Writer to the Signet, Falkirk, judicial factor on the trust estate of the late James Buchanan Waddell

First Party

George Waddell (secundus), nephew of the testator

Second Party

Mrs Alice Dunn, administratrix of the estate of Mrs Agnes Waddell or Dunn

Third Party

Thomas Waddell and others, younger brothers and sisters and representatives of deceased younger brothers and sisters of the second party

Fourth Parties

Procedural Posture

Special Case / Inner House, First Division, Court of Session

Legal Issues

  1. 1 Whether the testator's estate falls to be distributed as intestate estate; whether the testator's brother took a vested right in the succession a morte testatoris; whether the right to collate is transmissible to the brother's universal disponee; whether the heritable estate remains heritable in the brother's succession upon collation.

Ratio Decidendi

The majority held that the right to collate, being a personal privilege of the heir-at-law who is also next-of-kin, is not generally transmissible to a universal disponee unless exercised by irrevocable declaration during the heir's lifetime. However, in this case, the second party, as general disponee of the brother, is entitled to demand an equal share of the testator's moveables upon collating the heritable estate, and upon collation, one-half of the heritable estate remains heritable in the brother's succession and one-half of the moveable estate forms part of the brother's moveable estate.

Court Disposition

Majority: The second party is entitled to collate and claim a share of the moveable estate; upon collation, one-half of the heritable estate remains heritable in the brother's succession and one-half of the moveable estate forms part of the brother's moveable estate. Lord President dissenting: The right to collate...

Orders

  • Declare that the fee of the testator's estate falls to be distributed as intestate estate.
  • Declare that George Waddell (primus) took a vested right in the succession a morte testatoris.