Baron de Mauley and Another (Lady Kinnaird's Trustees) v. Ogilvy [1911] ScotLR 917 (07 July 1911)

Baron de Mauley and Another (Lady Kinnaird's Trustees) v. Ogilvy [1911] ScotLR 917 (07 July 1911)

In the absence of any indication in the will to the contrary, the phrase 'heirs, executors, and successors whomsoever' in the residuary clause must be construed as referring to the legal heirs in mobilibus ab intestato of the predeceased primary legatee, not to his executor-nominate. The residue therefore falls to be divided equally between the children of Major Ogilvy as his next-of-kin and heirs in mobilibus.

Citation
[1911] ScotLR 917
Parties
First Parties: Baron de Mauley and Another (Lady Kinnaird's Trustees); Second Parties: Mrs Isobel Louisa Nevill or Ogilvy; Second Parties: Sir Gilchrist Nevill Ogilvy of Inverquharity, Baronet (with consent of his mother, curator); Third Party: Miss Olivia Frances Isobel Ogilvy
Jurisdiction
Scotland
Judgment Date
07 July 1911
Procedural Posture
Special Case (succession) / Judgment of Inner House, First Division
Outcome
residue to be divided equally between the children of Major Ogilvy as heirs in mobilibus ab intestato
Legal Topics
Construction of Wills, Intestate Succession, Heirs in Mobilibus, Executors and Successors, Residuary Bequest
Succession Trusts and Estates Construction of Wills Intestate Succession Heirs in Mobilibus Executors and Successors Residuary Bequest

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Baron de Mauley and Another (Lady Kinnaird's Trustees)

First Parties

Mrs Isobel Louisa Nevill or Ogilvy

Second Parties

Sir Gilchrist Nevill Ogilvy of Inverquharity, Baronet (with consent of his mother, curator)

Second Parties

Miss Olivia Frances Isobel Ogilvy

Third Party

Procedural Posture

Special Case (succession) / Judgment of Inner House, First Division

Legal Issues

  1. 1 Whether the residue of Lady Kinnaird's estate should be paid to the executrix of the predeceased primary legatee (Major Ogilvy) to be administered under his will, or to his children as heirs in mobilibus ab intestato.

Ratio Decidendi

In the absence of any indication in the will to the contrary, the phrase 'heirs, executors, and successors whomsoever' in the residuary clause must be construed as referring to the legal heirs in mobilibus ab intestato of the predeceased primary legatee, not to his executor-nominate. The residue therefore falls to be divided equally between the children of Major Ogilvy as his next-of-kin and heirs in mobilibus.

Court Disposition

residue to be divided equally between the children of Major Ogilvy as heirs in mobilibus ab intestato

Orders

  • First question (entitlement of executrix) answered in the negative.
  • Second question (entitlement of children as heirs) answered in the affirmative.