Mitchell's Executrix v Gordon's Factor. Mitchell's Trustees v Gordon's Factor
| Jurisdiction | Scotland |
| Judgment Date | 17 February 1953 |
| Date | 17 February 1953 |
| Docket Number | No. 20. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
SuccessionIntestacyMoveable estateRepresentationFather dying intestate with daughter in common calamityNo evidence that either survived the otherWhether daughter's issue entitled to succeed by representation to her share of intestate's moveablesEvidencePresumptionIntestate Moveable Succession (Scotland) Act, 1855 (18 and 19 Vict. cap. 23), sec. 1.
The Intestate Moveable Succession (Scotland) Act, 1855, by sec. 1, enacts:"In all cases of intestate moveable succession where any person who, had he survived the intestate, would have been among his next of kin, shall have predeceased such intestate, the lawful child or children of such person so predeceasing shall come in the place of such person "
A father having died intestate in a common calamity in which one of his daughters also died, and there being no evidence to show whether either of them had survived the other, it was contended for a child of the deceased daughter that he was entitled under sec. 1 of the Act to the share of the intestate's estate to which his mother would have been entitled if she had survived the intestate.
Held that in order to succeed to a share of an intestate's moveable estate under sec. 1 of the 1855 Act, the claimant must prove that the parent through whom he claimed to succeed predeceased the intestate; and that, as the law of Scotland admitted no presumptions as to survivorship in a common calamity, the child of the deceased daughter could not prove the necessary fact and was not entitled to succeed.
SuccessionVestingConditio si institutus sine liberis decesseritBequest of residue to children of testatrixTestatrix and daughter dying in common calamityNo evidence that either survived the otherDaughter survived by issueWhether conditio applicableEvidencePresumption.
A testatrix died along with one of her daughters in a common calamity, and there was no evidence to show whether either of them had survived the other. The testatrix left a will in which she directed her trustees to hold the residue of her estate "for behoof of my whole children equally among them and to pay the share of each child as he or she respectively attains majority at which time but not sooner the provisions hereby made in their favour shall vest in them respectively." The deceased daughter had attained majority. The question having arisen whether, by virtue of the conditio si institutus sine liberis decesserit, a child of the deceased daughter was entitled to come in place of his mother as implied conditional institute under the bequest, it was contended on his behalf that it was not necessary for the application of the conditiothat the institute should have predeceased the testatrix, but that it was enough to show that the institute had not taken a vested interest in the provision.
Held that, even if it were to be assumed that it was enough to attract the application of the conditio that the institute should not have taken a vested interest in the provision, it was impossible in the present case to show that the daughter had not done so, since the law of Scotland admitted no presumptions as to survivorship in a common calamity; and that accordingly theconditio did not apply.
Opinions reserved on the question whether the conditioapplied in any case where the institute had not predeceased the testator, and observations (per the Lord President) on that question.
Drummond's Judicial Factor v. H. M. Advocate, 1944 S. C. 298, followed.
Laban Tetlow Mitchell, Mrs Margaret Chalmers Russell or Mitchell (his wife), Mrs Janet Chalmers Mitchell or Gordon (their daughter) and Bruce King Gordon (the daughter's husband) all died in an aeroplane accident on 17th October 1950. No evidence was available as to whether any one of these four persons Survived any of the others. Mr Mitchell died intestate, and Mrs Mitchell left a trust-disposition and settlement whereby she directed her trustees, with regard to the residue of her estate, "to hold the same for behoof of my whole children equally among them and to pay the share of each child as he or she respectively attains majority at which time but not sooner the provisions hereby made in their favour shall vest in them respectively " Mr and Mrs Mitchell's whole children were Mrs Gordon, who died with them, and Mrs Margaret Howatt Mitchell or Carlaw and Miss Elspeth Russell Mitchell, who both survived their parents. Mrs Gordon had attained majority before her death. She died intestate, and was survived by...
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Ross's Judicial Factor v Martin
...which survived because in any event that can possibly have happened their legacies are due to them. In Mitchell's Exevutrix v. Gordon, 1953 S.C. 176, the circumstances were somewhat similar to the present case. A father who died intestate and one of his daughters died in a common calamity a......
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Ross's Judicial Factor v Martin
...them on the fund in medio. 1 Drummond's Judicial Factor v. H. M. AdvocateSC, 1944 S. C. 298; Mitchell's Executrix v. Gordon's FactorSC,1953 S. C. 176, Lord President Cooper at p 181. 2 1932 S. C. 448. 3 Reference was also made to Reynolds v. Miller's TrusteesUNK, (1884) 11 R. 759, Lord M'La......