Johnston's Trustees v. Dewar and Others [1911] ScotLR 582 (10 March 1911)

Johnston's Trustees v. Dewar and Others [1911] ScotLR 582 (10 March 1911)

The gift to the 'nearest in kin' was contingent and only became operative at the death of the liferentrix without issue and after the prior destinations failed. Vesting was postponed until that date, and the persons entitled were those who were 'nearest in kin' at the death of the liferentrix, not at the testator's death. The doctrine of vesting subject to defeasance does not apply where there are multiple contingencies and intermediate destinations.

Citation
[1911] ScotLR 582
Parties
Applicant: Johnston's Trustees; Respondent: Dewar and Others
Jurisdiction
Scotland
Judgment Date
10 March 1911
Procedural Posture
Multiple Poinding and Exoneration / Inner House Appeal (reclaiming Motion) From Lord Ordinary
Outcome
Appeal dismissed; Lord Ordinary's decision adhered to.
Legal Topics
Vesting of Interests, Construction of Wills, Nearest in Kin, Defeasance, Intestate Succession
Succession Law Trusts and Estates Vesting of Interests Construction of Wills Nearest in Kin Defeasance Intestate Succession

Case Brief

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Parties

Johnston's Trustees

Applicant

Dewar and Others

Respondent

Procedural Posture

Multiple Poinding and Exoneration / Inner House Appeal (reclaiming Motion) From Lord Ordinary

Legal Issues

  1. 1 Whether the 'nearest in kin' entitled to the fund are those at the death of the testator or at the death of the liferentrix
  2. 2 Whether vesting of the fund occurred a morte testatoris subject to defeasance, or was postponed until the death of the liferentrix

Ratio Decidendi

The gift to the 'nearest in kin' was contingent and only became operative at the death of the liferentrix without issue and after the prior destinations failed. Vesting was postponed until that date, and the persons entitled were those who were 'nearest in kin' at the death of the liferentrix, not at the testator's death. The doctrine of vesting subject to defeasance does not apply where there are multiple contingencies and intermediate destinations.

Court Disposition

Appeal dismissed; Lord Ordinary's decision adhered to.

Orders

  • Claims of grandnephews and grandnieces (nearest in kin at death of liferentrix) sustained.
  • Claims under the wills of Mrs Jamieson and Mrs Laird repelled.