Turner's Trustees v. M'Fadyen and Others [1906] ScotLR 43_712 (25 May 1906)

Turner's Trustees v. M'Fadyen and Others [1906] ScotLR 43_712 (25 May 1906)

It is not competent to prove by parole evidence or reference to oath the alleged verbal instructions by the testatrix as to the disposal of the residue; the residue is therefore undisposed of and has fallen into intestacy. However, claimants may competently prove by parole evidence nuncupative legacies in their favour of £8, 6s. 8d. each.

Citation
[1906] ScotLR 43_712
Parties
Pursuer: R. S. Corrigall, solicitor, Dunoon, and Mrs Margaret Smith or M'Fadyen (Turner's Trustees); Claimant: Mrs Margaret Smith or M'Fadyen; Claimant: Inspector of Poor of Inverary Parish; Claimant: Mrs Elizabeth M'Kellar or Strathearn and others (next-of-kin); Claimant: King's and Lord Treasurer's Remembrancer
Jurisdiction
Scotland
Judgment Date
25 May 1906
Procedural Posture
Multiplepoinding (succession) / Interlocutor on Relevancy and Competency of Claims
Outcome
Partial allowance of claims; principal claims for residue rejected; limited proof allowed for small legacies.
Legal Topics
Testamentary Disposition, Nuncupative Legacy, Parole Evidence, Intestacy
Succession Wills and Estates Testamentary Disposition Nuncupative Legacy Parole Evidence Intestacy

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Parties

R. S. Corrigall, solicitor, Dunoon, and Mrs Margaret Smith or M'Fadyen (Turner's Trustees)

Pursuer

Mrs Margaret Smith or M'Fadyen

Claimant

Inspector of Poor of Inverary Parish

Claimant

Mrs Elizabeth M'Kellar or Strathearn and others (next-of-kin)

Claimant

King's and Lord Treasurer's Remembrancer

Claimant

Procedural Posture

Multiplepoinding (succession) / Interlocutor on Relevancy and Competency of Claims

Legal Issues

  1. 1 Whether verbal instructions by a testatrix to a trustee regarding the residue of her estate can be proved by parole evidence or reference to oath
  2. 2 Whether claimants can establish nuncupative legacies by parole evidence

Ratio Decidendi

It is not competent to prove by parole evidence or reference to oath the alleged verbal instructions by the testatrix as to the disposal of the residue; the residue is therefore undisposed of and has fallen into intestacy. However, claimants may competently prove by parole evidence nuncupative legacies in their favour of £8, 6s. 8d. each.

Court Disposition

Partial allowance of claims; principal claims for residue rejected; limited proof allowed for small legacies.

Orders

  • It is not competent to prove by parole evidence or reference to oath the verbal instructions alleged to have been given to Mrs M'Fadyen by the testatrix as to the disposal of the residue; the residue is undisposed of and has fallen into intestacy.
  • The averments by Mrs M'Fadyen and Robert Fraser are relevant and may be proved to the extent of establishing a verbal legacy of £8, 6s. 8d. each.