Kindness v. Bruce [1902] ScotLR 39_299 (10 January 1902)

Kindness v. Bruce [1902] ScotLR 39_299 (10 January 1902)

The children did not acquire an indefeasible right to the fee under the 1839 disposition because no infeftment in fee was taken in their favour, and the destination to them was gratuitous and revocable by Mrs Bruce. The right to the fee remained with Mrs Bruce, who validly revoked the destination by her subsequent deeds.

Citation
[1902] ScotLR 39_299
Parties
Pursuer: Robert Bruce Kindness; Defender: Robert Bruce; Defender: Mrs Catherine Bruce or Fowlie; Defender: her husband (name not specified); Defender: Sole surviving trustees of Robert Adam; Defender: North of Scotland Bank, Limited
Jurisdiction
Scotland
Judgment Date
10 January 1902
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of Lord Ordinary affirmed; defenders assoilzied (absolved) and awarded expenses.
Legal Topics
Disposition of Heritage, Liferent and Fee, Revocation of Gratuitous Destination, Infeftment, Rights of Children Under Disposition
Property Law Succession Law Trusts and Estates Disposition of Heritage Liferent and Fee Revocation of Gratuitous Destination Infeftment Rights of Children Under Disposition

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Parties

Robert Bruce Kindness

Pursuer

Robert Bruce

Defender

Mrs Catherine Bruce or Fowlie

Defender

her husband (name not specified)

Defender

Sole surviving trustees of Robert Adam

Defender

North of Scotland Bank, Limited

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the children acquired an indefeasible right to the fee under the 1839 disposition
  2. 2 Whether the destination to the children was gratuitous and revocable by Mrs Bruce
  3. 3 Whether lack of infeftment in the fee prevented the children from acquiring a real right

Ratio Decidendi

The children did not acquire an indefeasible right to the fee under the 1839 disposition because no infeftment in fee was taken in their favour, and the destination to them was gratuitous and revocable by Mrs Bruce. The right to the fee remained with Mrs Bruce, who validly revoked the destination by her subsequent deeds.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary affirmed; defenders assoilzied (absolved) and awarded expenses.

Orders

  • The reasons for reduction repelled.
  • Defenders assoilzied (absolved).