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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scoular's Trustees v. Scoular and Others [1867] ScotLR 5_4 (5 November 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0004.html Cite as: [1867] SLR 5_4, [1867] ScotLR 5_4 |
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Page: 4↓
Terms of trust deed under which held that any residue of estate which might remain after satisfying the special purposes of the trust, was not intestate succession, but was divisible proportionately among the legatees named in the deed.
The late James Scoular, engineer, Glasgow, who died in December 1865, executed a holograph testament whereby he appointed A. M. Robertson, R. Macalister, and J. Fraser his sole executors and administrators, with full powers as such; declaring that these parties “shall be accountable to the residuary legatees hereinafter named for their intromission in virtue herein.” Certain legacies were appointed to be paid to various benevolent institutions, and various bequests made to different persons. The deed then ran thus:—“If there is as much money left after all the bequests is fully made, I appoint my executors to pay the Government legacy tax on all the legacies, and if any return ever comes from the Western Bank, as I paid all the calls in full, my executors is fully impowered to give in proportional parts to the above mentioned institutions and persons mentioned. And I do hereby expressly exclude all my half brothers and sisters, viz., Alexander Scoular and his heirs, and Andrew Scoular and his heirs, and my half sister Grisel or Grace Scoular, since deceased, and her heirs, and all my other relatives and next of kin from any right or interest in my moveable succession.”
Alexander and Andrew Scoular and others, as next of kin of the deceased, now contented, in an action of multiplepoinding raised in the name of the trustees, that there was no nomination of residuary legatees in the said testament, nor any disposal by the testator of the residue of his estate, and claimed the whole find in medio as intestate succession, falling to the next of kin.
The claim was resisted by the institutions and persons named as legatees, who claimed proportional shares in any residue which remained after satisfying the special purposes of the testament.
The Lord Ordinary ( Jerviswoode) found that the legatees named in the deed were also constituted the residuary legatees of the testator, and repelled the plea of the next of kin.
The next of kin reclaimed.
Scott and Strachan for reclaimers.
Watson, Lamond, W. A. O. Paterson, and Birnie, for respondents, were not called on.
The Court adhered, on the ground that the intention of the testator, as disclosed in the deed, was, that any residue should go to the legatees named; two of their Lordships being of opinion that that intention was very clearly expressed.
Solicitors: Agents for Reclaimers— Macgregor & Barclay, S.S.C.
Page: 5↓
Agents for Respondents— Webster & Sprott, S.S.C., and Campbell & Smith, S.S.C., and J. & A. Peddie, W.S.
