Cox's Trs v Cox [1950] ScotCS CSIH_1 (20 January 1950)

Cox's Trs v Cox [1950] ScotCS CSIH_1 (20 January 1950)

The legal fiction that children in utero are deemed born applies where the benefit is for the child and the will does not expressly or by implication exclude them; in this case, the will's language does not exclude such children, so they are entitled to share as beneficiaries.

Source-derived case information.

Citation
[1950] ScotCS CSIH_1
Parties
Applicant: Cox's Trustees; Respondent: Cox
Jurisdiction
Scotland
Judgment Date
20 January 1950
Procedural Posture
Special Case (testamentary Interpretation) / Court of Session, Inner House, Appellate
Outcome
Application of the legal fiction allowed; children in utero at the testator's death are entitled to share as beneficiaries.
Legal Topics
Interpretation of Wills, Posthumous Children, Application of Legal Fiction, Beneficiaries in Utero
Succession Law Trusts and Estates Interpretation of Wills Posthumous Children Application of Legal Fiction Beneficiaries in Utero

Source-derived case record

Summary, issues, holding and outcome

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Parties

Cox's Trustees

Applicant

Cox

Respondent

Procedural Posture

Special Case (testamentary Interpretation) / Court of Session, Inner House, Appellate

Legal Issues

  1. 1 Whether children in utero at the testator's death are entitled to share as 'descendants alive at the time of my death' under the will

Ratio Decidendi

The legal fiction that children in utero are deemed born applies where the benefit is for the child and the will does not expressly or by implication exclude them; in this case, the will's language does not exclude such children, so they are entitled to share as beneficiaries.

Court Disposition

Application of the legal fiction allowed; children in utero at the testator's death are entitled to share as beneficiaries.

Orders

  • First branch answered in the negative; second branch answered in the affirmative.