Browne's Trustees v. Browne [1900] ScotLR 37_673 (17 May 1900)

Browne's Trustees v. Browne [1900] ScotLR 37_673 (17 May 1900)

The destination in the testator's settlement imported substitution in favour of surviving children; Mary's share did not vest in her infant son Alexander as he died without evacuating the destination, so the share fell to the surviving children of the testator.

Citation
[1900] ScotLR 37_673
Parties
Pursuer: Browne's Trustees; Claimant: Colin Brown's Trustees; Claimant: Children of Mrs Smith; Claimant: M'Clelland; Claimant: Anderson; Claimant: Mrs Morgan
Jurisdiction
Scotland
Judgment Date
17 May 1900
Procedural Posture
Action of Multiplepoinding / Reclaiming Note Before Inner House, Interlocutor Pronounced
Outcome
Interlocutor recalled; claim of Colin Brown's trustees repelled; share falls to surviving children of testator; expenses awarded to successful claimants.
Legal Topics
Conditional Institution, Substitution, Heritable Property, Evacuation of Destination
Succession Trusts Property Law Conditional Institution Substitution Heritable Property Evacuation of Destination

Case Brief

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Parties

Browne's Trustees

Pursuer

Colin Brown's Trustees

Claimant

Children of Mrs Smith

Claimant

M'Clelland

Claimant

Anderson

Claimant

Mrs Morgan

Claimant

Procedural Posture

Action of Multiplepoinding / Reclaiming Note Before Inner House, Interlocutor Pronounced

Legal Issues

  1. 1 Whether the destination in the testator's settlement imported substitution or conditional institution in favour of surviving children
  2. 2 Whether Mary's share vested in her infant son Alexander and transmitted to his representatives
  3. 3 Interpretation of 'failing issue' and 'survivors' in the will

Ratio Decidendi

The destination in the testator's settlement imported substitution in favour of surviving children; Mary's share did not vest in her infant son Alexander as he died without evacuating the destination, so the share fell to the surviving children of the testator.

Court Disposition

Interlocutor recalled; claim of Colin Brown's trustees repelled; share falls to surviving children of testator; expenses awarded to successful claimants.

Orders

  • Recall interlocutor reclaimed against.
  • Find share destined to Mary in liferent and her issue, whom failing to survivors of testator's children, falls to surviving children.