Robertson's Trustees v. Horne and Others [1921] ScotLR 561 (02 July 1921)

Robertson's Trustees v. Horne and Others [1921] ScotLR 561 (02 July 1921)

The will, read as a whole, indicated the testator intended the share in question to be divided per stirpes, with the children of the deceased daughter taking their mother's share collectively, not individually per capita.

Citation
[1921] ScotLR 561
Parties
First Parties (applicants): Joseph Young and others, Trustees of John Chisholm Robertson; Second Parties (respondents): Robert Horne, Jessie Horne, Mary Horne or Lloyd; Third Parties (respondents): Margaret Forrester and others (children of Lucinda Forrester)
Jurisdiction
Scotland
Judgment Date
02 July 1921
Procedural Posture
Special Case Stated for Opinion and Judgment (succession/will Construction) / Judgment of Inner House, First Division
Outcome
First question of law answered in the affirmative (division per stirpes); second question answered in the negative (not per capita).
Legal Topics
Construction of Wills, Division Per Stirpes Vs Per Capita, Testamentary Intention
Succession Wills and Probate Construction of Wills Division Per Stirpes Vs Per Capita Testamentary Intention

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Parties

Joseph Young and others, Trustees of John Chisholm Robertson

First Parties (applicants)

Robert Horne, Jessie Horne, Mary Horne or Lloyd

Second Parties (respondents)

Margaret Forrester and others (children of Lucinda Forrester)

Third Parties (respondents)

Procedural Posture

Special Case Stated for Opinion and Judgment (succession/will Construction) / Judgment of Inner House, First Division

Legal Issues

  1. 1 Whether the share of the trust estate destined to the second and third parties is divisible per stirpes or per capita
  2. 2 Proper construction of the testator's will regarding division among named and class beneficiaries

Ratio Decidendi

The will, read as a whole, indicated the testator intended the share in question to be divided per stirpes, with the children of the deceased daughter taking their mother's share collectively, not individually per capita.

Court Disposition

First question of law answered in the affirmative (division per stirpes); second question answered in the negative (not per capita).

Orders

  • The share of the trust estate is divisible into four equal parts: three parts to the second parties equally among them, one part to the third parties equally among them.