By postnuptial contract spouses conveyed to each other in liferent, and to the children of the marriage, if any, in fee, the whole estate of each, the fee of both estates to be divisible by the husband of the marriage, such division to take effect after the death of the surviving spouse, and at majority or marriage of the children. Powers of advancing funds for their maintenance and education, or settlement in business, were given to certain named trustees. Should all the children die during the life of the surviving spouse the funds were (failing a disposition by the spouses severally) to suffer division after the decease of the survivor, by the husband’s funds falling to his own nearest of kin, and the wife’s falling to her own nearest of kin. The husband died without executing any further deed, survived by his widow and one child. The latter died, survived by an only son. The widow sold certain heritable property, which had been bought by her husband, and conveyed the same with consent of her grandson. The price of the subject was delivered to trustees to be held for those entitled thereto under the above named contract. The grandson died under age disposing of any right he might have in the said price in favour of his grandmother, who dealt therewith in her will.
Held ( rev. the judgment of the Court of Session) (1) that the persons favoured as to the husband’s estate were his nearest of kin as a class to be ascertained as at his own death; (2) that the grandson’s will carried the price of the heritable subjects, as it had not been challenged within the prescribed period.
Opinion ( per Lord Watson) that as a result of the Moveable Succession Act 1855 (18 and 19 Vict. cap. 23) ‘nearest of kin’ is not equivalent to heirs in mobilibus.
Judges:
Lord Chancellor ( Halsbury), and Lords Watson and Macnaghten
Citations:
[1889] UKHL 787, 26 SLR 787
Links:
Jurisdiction:
Scotland
Wills and Probate
Updated: 03 June 2022; Ref: scu.635171