Elder's Trustees v Treasurer of Free Church of Scotland

JurisdictionScotland
Judgment Date20 October 1892
Date20 October 1892
Docket NumberNo. 2.
CourtCourt of Session
Court of Session
2d Division

Ld. Kyllachy, Lord Justice-Clerk, Lord Young, Lord Rutherfurd Clark, Lord Trayner.

No. 2.
Elder's Trustees
and
Treasurer of Free Church of Scotland.

SuccessionTrustPowersAccumulationThellusson ActResidue clauseCharity.

A testator directed his trustees, after providing for an annuity to his wife, and for debts and legacies, to hold the whole residue of his estate until the death of his wife, and upon her death to set aside 10,000 as an endowment of a chair in a Free Church College, to apply another sum of 10,000 in erecting and endowing a Free Church, and also to apply such further sum as they should see proper in providing a manse for that church, and lastly, after all the above purposes shall have been fulfilled to apply and pay over the whole residue and remainder of my estate, if such there shall be, to and for the use and benefit of such four of the schemes of the Free Church of Scotland, and in such proportions as to my trustees shall appear most expedient.

The income of the residue exceeded what was necessary to pay the widow's annuity. She survived the testator more than twenty-one years, and further accumulation of the surplus income was struck at by the Thellusson Act. In a multiplepoinding raised by the trustees, claims to the surplus income were lodged by (1) the testator's next of kin, who claimed it as intestate estate; and (2) by the trustees of the Free Church, who maintained that the surplus income fell to be applied for behoof of such four schemes of the Free Church as the existing trustees of the testator should select.

Held that the four schemes could not be selected until the widow's death, and that prior to that event there could be no residuary legatee, and that the surplus income fell to the testator's heirs ab intestado.

Thomas Elder, merchant, Leith, died on 5th December 1869. He was survived by his wife. He left no children.

Mr Elder left a trust-disposition and settlement (with codicil thereto) whereby he conveyed his whole estate, heritable and moveable, to trustees. After directing payment of debts, and of an annuity of 300 payable to Mrs Elder under her marriage-contract, and of certain legacies, including a legacy to each of his nephews Thomas Jardine Elder and John Dunlop Elder, who were his next of kin, the testator directed as follows:(Fifth) that my trustees shall hold the whole rest, residue, and remainder of my estate remaining after fulfilment of the above-written, provisions, with the income arising therefrom, until the death of my wife, and shall out of such residue and income make payment of any other legacies or provisions I may leave. (Sixth) that my trustees shall upon the death of my wife set aside out of the residue of my estate the sum of 10,000, and shall either hold the same themselves or invest the same in the name of the general trustees for the time being of the Free Church of Scotland and their successors in office, or in the name of any other persons as my trustees shall think best, in trust, to apply the free interest and profits accruing annually from the said sum, after deduction of all expenses, as a provision or endowment of a Professor of Natural Science in the said New College of Edinburgh in connection with the Free Church of Scotland, and subject to such burdens, conditions, rules, and regulations as to my trustees may seem best; (Seventh) that my trustees shall, upon the death of my wife, apply 7000 of my remaining property to and for the erection of a Territorial Church on the principle of the late Dr Chalmers, and in connection with the Free Church of Scotland, and that in some destitute part of the city of Edinburgh or of Leith; and shall apply the further sum of 3000 for a partial endowment for the minister of said church; and they shall also apply such further sum as they shall see proper for the purchase or erection of a manse for said minister in or as near to the district as possible; and I commit to the sole discretion of my trustees all the details, regulations, and provisions requisite in their opinion for carrying out the purposes specified under the seventh head: And (lastly), after all the above purposes shall have been fulfilled, I appoint and direct my trustees to apply and pay over the whole residue and remainder of my estate, if such there shall be, to and for the use and benefit of such four of the schemes of the Free Church of Scotland, and in such proportions as to my trustees shall appear most expedient.

The amount of residue of the estate at the testator's death, subject to the widow's annuity of 300, was 27,307.

The annual income of the residue being larger than was required to meet Mrs Elder's annuity, accumulations of income took place, and in consequence the residue amounted by 1881 to 32,400. In February 1881 a special case was presented1 by (1) the testator's trustees, and (2) the General Treasurer of the Free Church and the College Committee of the Free Church, to have it decided (1) whether the trustees were entitledthe widow being in life and not objectingto set aside the 10,000 provided by the...

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