(Cunningham's Trustees) v. Blackwell and Others [1908] ScotLR 175 (28 November 1908)

(Cunningham's Trustees) v. Blackwell and Others [1908] ScotLR 175 (28 November 1908)

The residue vested a morte testatoris, division is per capita among the named beneficiaries, and members of the Hay family born after the testator's death are entitled to share.

Citation
[1908] ScotLR 175
Parties
Applicant: Cunningham's Trustees; Respondents: Blackwell and Others
Jurisdiction
Scotland
Judgment Date
28 November 1908
Procedural Posture
Special Case / Final Judgment
Outcome
All questions answered affirmatively as per the first alternatives; residue to be divided per capita among eligible beneficiaries including post natus members.
Legal Topics
Vesting, Division Per Stirpes or Per Capita, Interpretation of 'among' in Wills
Succession Law Vesting Division Per Stirpes or Per Capita Interpretation of 'among' in Wills

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Parties

Cunningham's Trustees

Applicant

Blackwell and Others

Respondents

Procedural Posture

Special Case / Final Judgment

Legal Issues

  1. 1 When did the fee of the residue vest: a morte testatoris or at the death of the liferentrix?
  2. 2 Should the division be per stirpes or per capita?
  3. 3 Is a member of the Hay family born after the testator's death entitled to a share?

Ratio Decidendi

The residue vested a morte testatoris, division is per capita among the named beneficiaries, and members of the Hay family born after the testator's death are entitled to share.

Court Disposition

All questions answered affirmatively as per the first alternatives; residue to be divided per capita among eligible beneficiaries including post natus members.

Orders

  • Residue to be divided per capita among the Blackwell family (excluding Mrs Buckle) and the children of James Hay, including those born after the testator's death.