M'Dougal's Trustees v. M'Dougal's Trustees [1902] ScotLR 39_375 (30 January 1902)

M'Dougal's Trustees v. M'Dougal's Trustees [1902] ScotLR 39_375 (30 January 1902)

The words 'surviving' and 'remaining' in the will and codicil refer to the periods of vesting specified in those instruments; under the codicil, the date of vesting is the testator's death, so the right to a proportional part of the fee of the share liferented by Mrs Hosack vested at the testator's death in those of his children who survived him, subject to defeasance if Mrs Hosack left issue who attained majority.

Citation
[1902] ScotLR 39_375
Parties
Applicant: M'Dougal's Trustees; Respondent: M'Dougal's Trustees
Jurisdiction
Scotland
Judgment Date
30 January 1902
Procedural Posture
Special Case (trust/estate) / Judgment on Construction of Will and Codicil
Outcome
First alternative of the second question answered in the affirmative; fee vested at testator's death in surviving children, subject to defeasance.
Legal Topics
Vesting of Interests, Survivorship Clause, Interpretation of Wills, Defeasance of Vested Interests
Succession Trusts and Estates Vesting of Interests Survivorship Clause Interpretation of Wills Defeasance of Vested Interests

Case Brief

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Parties

M'Dougal's Trustees

Applicant

M'Dougal's Trustees

Respondent

Procedural Posture

Special Case (trust/estate) / Judgment on Construction of Will and Codicil

Legal Issues

  1. 1 Whether vesting of the fee of the share liferented by Mrs Hosack was suspended until her death or vested at the testator's death
  2. 2 Interpretation of 'surviving' and 'remaining' in the will and codicil
  3. 3 Entitlement to participate in the division of the residue share liferented by Mrs Hosack

Ratio Decidendi

The words 'surviving' and 'remaining' in the will and codicil refer to the periods of vesting specified in those instruments; under the codicil, the date of vesting is the testator's death, so the right to a proportional part of the fee of the share liferented by Mrs Hosack vested at the testator's death in those of his children who survived him, subject to defeasance if Mrs Hosack left issue who attained majority.

Court Disposition

First alternative of the second question answered in the affirmative; fee vested at testator's death in surviving children, subject to defeasance.

Orders

  • The share of residue liferented by Mrs Hosack (subject to the liferent of her husband of one-third thereof) to be divided among the testator's children who survived him at his death, the representatives of those who survived him and predeceased Mrs Hosack, and the children who attained majority of the daughter who...