Scottish Court of Session Decisions

Subject_1 SUBSTITUTE AND CONDITIONAL INSTITUTE.

Fouke
v.
Duncans

Date: 1 March 1770
Case No. No. 21.

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A man, by his will, bequeathed to his two nephews, David and Patrick, the one half of his personal estate, to be disposed of between them in manner following, viz. two thirds to David, and one third to Patrick. The legacies were to be paid at the death of the testator's wife; and it was declared, that if either of the legatees should die before the term of payment, without male issue, then his share was to go to the survivor and his male issue. Both legatees survived the testator; but predeceased the term of payment. David predeceased Patrick, without issue; and Patrick also died without issue, but left a will in favour of his wife. Here the question occurred, Whether this devise was to be considered as a substitution, or only a conditional institution? or, in other words, whether, on David's decease, his share of the legacy vested in Patrick, in virtue of the destination in their uncle's testament, so as to make the whole legacy descend to the representatives of Patrick, exclusive of David's next of kin? The Lords found, That the substitution in favour of Patrick did take place, and therefore preferred his representatives to the whole legacy bequeathed to David and Patrick.

*** This case is No. 38. p. 8092. voce Legacy.