Smith v. M'Coll's Trustees [1910] ScotLR 291 (14 December 1910)

Smith v. M'Coll's Trustees [1910] ScotLR 291 (14 December 1910)

The pursuer was not entitled to immediate payment or conveyance of the trust residue as he did not have a fee under the settlement; the trust conferred only a liferent, with the fee to be divided among the next generation after the death of the last liferenter. The action for declarator of vesting subject to defeasance was premature as possible contradictors (such as issue of excluded beneficiaries or next-of-kin) were not represented.

Citation
[1910] ScotLR 291
Parties
Pursuer and Reclaimer: Adam Smith; Defenders and Respondents: James Burns Kidston and others, Trustees of Dugald M'Coll; Defender (next of Kin and Heir in Mobilibus): Mrs Jessie M'Coll or Smith
Jurisdiction
Scotland
Judgment Date
14 December 1910
Procedural Posture
Declarator / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome
Lord Ordinary's judgment recalled; defenders assoilzied (absolved) from the first alternative of the first declaratory conclusion and related conclusions; action otherwise dismissed.
Legal Topics
Vesting of Interests, Liferent and Fee, Trust Administration, Declarator Ab Ante, Defeasance, Prematurity of Action
Succession Law Trusts and Estates Vesting of Interests Liferent and Fee Trust Administration Declarator Ab Ante Defeasance Prematurity of Action

Case Brief

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Parties

Adam Smith

Pursuer and Reclaimer

James Burns Kidston and others, Trustees of Dugald M'Coll

Defenders and Respondents

Mrs Jessie M'Coll or Smith

Defender (next of Kin and Heir in Mobilibus)

Procedural Posture

Declarator / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

  1. 1 Whether the pursuer is entitled to immediate payment or conveyance of the trust residue as fee or otherwise
  2. 2 Whether the pursuer has a vested right in the fee subject to defeasance in the event of having issue
  3. 3 Whether the action is premature due to possible unrepresented contradictors

Ratio Decidendi

The pursuer was not entitled to immediate payment or conveyance of the trust residue as he did not have a fee under the settlement; the trust conferred only a liferent, with the fee to be divided among the next generation after the death of the last liferenter. The action for declarator of vesting subject to defeasance was premature as possible contradictors (such as issue of excluded beneficiaries or next-of-kin) were not represented.

Court Disposition

Lord Ordinary's judgment recalled; defenders assoilzied (absolved) from the first alternative of the first declaratory conclusion and related conclusions; action otherwise dismissed.

Orders

  • Recall of Lord Ordinary's interlocutor
  • Assoilzie defenders from first alternative of first declaratory conclusion and related conclusions for decerniture