Forsyth v. Forsyth [1901] ScotLR 38_668 (14 June 1901)

Forsyth v. Forsyth [1901] ScotLR 38_668 (14 June 1901)

The clause of transmission to the second party is repugnant to the dispositive clause granting fee to the first party and is therefore ineffective. The fee of the property remains with the first party, subject to the liferent of the second party.

Citation
[1901] ScotLR 38_668
Parties
First Party (applicant): Agnes Forsyth; Second Party (respondent): Margaret Cruikshank or Forsyth; Third Parties (respondents): Robert Cruikshank's testamentary trustees
Jurisdiction
Scotland
Judgment Date
14 June 1901
Procedural Posture
Special Case (court of Session, Inner House, Second Division) / Judgment on Construction of Deed
Outcome
The fee of the property belongs to the first party, Agnes Forsyth. The claims of the second party and the trustees are rejected.
Legal Topics
Fee and Liferent, Conditions on Gifts, Repugnancy in Deeds, Clause of Transmission, Heritable Property
Property Law Succession Law Fee and Liferent Conditions on Gifts Repugnancy in Deeds Clause of Transmission Heritable Property

Case Brief

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Parties

Agnes Forsyth

First Party (applicant)

Margaret Cruikshank or Forsyth

Second Party (respondent)

Robert Cruikshank's testamentary trustees

Third Parties (respondents)

Procedural Posture

Special Case (court of Session, Inner House, Second Division) / Judgment on Construction of Deed

Legal Issues

  1. 1 Whether the clause of transmission to the second party is repugnant to the dispositive clause granting fee to the first party
  2. 2 Whether the fee of the property devolves to the first party, the second party, or the trustees under the conditions of the deed

Ratio Decidendi

The clause of transmission to the second party is repugnant to the dispositive clause granting fee to the first party and is therefore ineffective. The fee of the property remains with the first party, subject to the liferent of the second party.

Court Disposition

The fee of the property belongs to the first party, Agnes Forsyth. The claims of the second party and the trustees are rejected.

Orders

  • Answer to question 1(a) in the affirmative: the fee belongs to Agnes Forsyth.
  • Answers to questions 1(b) and 1(c) in the negative: the fee does not belong to Mrs Forsyth or the trustees.