Howe's Trustees v. Howe's Judicial Factor [1903] ScotLR 40_772 (10 July 1903)

Howe's Trustees v. Howe's Judicial Factor [1903] ScotLR 40_772 (10 July 1903)

Mrs Howe had only a liferent with power to convert it into a fee, but as she did not exercise that power, the fee vested in the person who was Dr Howe's heir whomsoever at the date of his death.

Citation
[1903] ScotLR 40_772
Parties
Applicant: Howe's Trustees; Respondent: Howe's Judicial Factor; Third Party: Three children of Mrs Kilpatrick and their curator bonis and factor loco tutoris; Fourth Party: Mrs Jane Galt Orr or Martin; Fifth Party: Mrs Howe's next of kin; Sixth Party: Mrs Howe's residuary legatees
Jurisdiction
Scotland
Judgment Date
10 July 1903
Procedural Posture
Special Case / Final Judgment
Outcome
First question answered in the affirmative, second and third in the negative; declared accordingly and decerned.
Legal Topics
Liferent, Fee, Power of Disposal, Vesting, Heirs Whomsoever, Antenuptial Contract
Succession Property Law Liferent Fee Power of Disposal Vesting Heirs Whomsoever Antenuptial Contract

Case Brief

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Parties

Howe's Trustees

Applicant

Howe's Judicial Factor

Respondent

Three children of Mrs Kilpatrick and their curator bonis and factor loco tutoris

Third Party

Mrs Jane Galt Orr or Martin

Fourth Party

Mrs Howe's next of kin

Fifth Party

Mrs Howe's residuary legatees

Sixth Party

Procedural Posture

Special Case / Final Judgment

Legal Issues

  1. 1 Did Dr Howe's estate vest in Mrs Orr as his heir whomsoever at the date of his death?
  2. 2 Did Dr Howe's estate vest in the third and fourth parties as his heirs whomsoever at the date of the death of the liferentrix Mrs Howe?
  3. 3 Did Dr Howe's estate vest in Mrs Howe, and on her death fall to the fifth parties as her next of kin?

Ratio Decidendi

Mrs Howe had only a liferent with power to convert it into a fee, but as she did not exercise that power, the fee vested in the person who was Dr Howe's heir whomsoever at the date of his death.

Court Disposition

First question answered in the affirmative, second and third in the negative; declared accordingly and decerned.

Orders

  • The fee of Dr Howe's estate vested in Mrs Orr as his heir whomsoever at the date of his death.
  • The estate did not vest in the third and fourth parties as heirs at the date of Mrs Howe's death.