Symmers's Trustees v Symmers
| Jurisdiction | Scotland |
| Judgment Date | 26 February 1918 |
| Docket Number | No. 42. |
| Date | 26 February 1918 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Dundas, Lord Guthrie.
Charitable Bequests and TrustsUncertaintyCharitable institutions or deserving agencies in Aberdeen and Stonehaven.
A testator directed his trustees to divide the residue of his estate among such charitable institutions or deserving agencies in Aberdeen and Stonehaven as they may select.
Held that the bequest was void from uncertainty, in respect that the description deserving agencies fell to be read separately from charitable institutions, and was too vague to receive effect.
DischargeEffectSuccessionIntestate successionDischarge granted by child claiming legitimClaim by child as heir ab intestato.
A testator made certain provisions in favour of his only child, a son, which he declared should be accepted by him as in full satisfaction of his legal rights. He further directed his trustees, in the event of his son claiming his legal rights, to distribute the residue of the trust-estate among certain beneficiaries. The son claimed his legal rights and, on receiving payment thereof, he granted a discharge in favour of his father's trustees, discharging them of all he could have asked or claimed out of his father's estate. It was afterwards found that the bequest of residue was void from uncertainty, and the son, as his father's sole heir ab intestato, claimed payment of the residue as having fallen into intestacy.
Held that the son, in granting the discharge, had not thereby discharged his rights as heir ab intestato, and that he was accordingly entitled to receive payment of the residue.
John Symmers, retired shipmaster, Aberdeen, died on 28th March 1915, leaving a last will and testament and relative codicil by which he conveyed his whole estate to trustees, for the purposes therein mentioned. The second, third, and seventh purposes of the will were as follows:(Second) I leave and bequeath to my son, James Adam Symmers, Master Mariner, the sum of Two hundred pounds, free of legacy duty, payable at the first term of Whitsunday or Martinmas occurring six months after my death; also my Grandfather Clock and the box containing the Binocular Glasses presented to me by the late Emperor William of Germany, but in the event of my said son predeceasing me then my Trustees shall deliver the said Clock and Binocular Glasses to my eldest grandson, John Symmers, on his attaining twenty-one years of age. (Third) To my said grandson, John Symmers, I bequeath my gold watch and chain with French coin attached, and to my granddaughter, Doreen Isabel Adam Symmers, I bequeath the large Indian shawl and any jewellery which belonged to my wife and which may be in my possession at my death, and my Trustees shall deliver same to said grandchildren on their respectively attaining the age of twenty-one years. And (Seventh) with regard to the residue of my estate, my Trustees shall divide the same equally among my grandchildren, and shall pay the same on their respectively reaching the age of twenty-seven years, with power to my Trustees to apply the income of any grandchild's share for their maintenance and education until they reach the said age of twenty-seven years; Declaring always that the above bequests and provisions contained in the (Second), (Third), and (Seventh) Purposes hereof are in lieu of, and shall be accepted by my said son, James Adam Symmera, as in full satisfaction of his legal rights, but in the event of his not agreeing to accept these provisions but electing to claim said rights, the bequests and provisions contained in the (Second), (Third), and (Seventh) Purposes hereof shall lapse, and whatever residue there may be after settlement of my son's claim and payment of the legacies and satisfaction of the bequests contained in the (First), (Fifth), and (Sixth) Purposes above written, I instruct my Trustees to realise and divide same amongst such charitable institutions or deserving agencies in Aberdeen and Stonehaven as they may select, and in such proportions and at such times as they may think proper.
The testator was predeceased by his wife, and was survived by one child, his son James Adam Symmers.
Questions having arisen as to the effect of the provisions of the last will and testament, and also with regard to a discharge of his rights thereunder granted by James Adam Symmers, a special case was presented for the opinion and judgment of the Court, to which the trustees acting under the last will and testament were the first parties, and James Adam Symmers was the second party.
The case set forth, inter alia:
5. The said deceased John Symmers left moveable estate of about the value of 4154, and heritable estate of about the value of 500.
6. The second party elected to claim his legal rights in his father's estate and renounced the provisions in his favour. After various communings, the sum of 2018, 5s. was adjusted as the amount of the legitim fund, the whole of which was made over to the second party as the only child of the said John Symmers. In exchange for this sum or investments representing the same, the second party executed a formal discharge,* dated 5th February
1916, in favour of the first parties, in which he accepted the said sum in full satisfaction of all he could ask or claim out of his said father's effects, and he exonered and discharged the trustees of all sums of money or other effects which belonged or were due to him, or which he could have asked or claimed out of the estate and effects of his said deceased father, and of their whole actings, transactions, and intromissions with the moveable estate of his father. The...
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