John Miller and Others, - Appellants; George Rowan and Another, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1837 |
| Date | 17 July 1837 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 341
FROM THE COURT OF SESSION.
Mews' Dig. iii. 304, 376; vi. 1830; xv. 1631. On point as to bequest of residue, see Dolan v. Macdermot, 1868, L.R. 3 Ch. 676. As to analogous practice in regard to costs in Probate Division, see Davies v. Gregory, 1873, L.R. 3 P. and D. 31; Boughton v. Knight, 1873, ib. 77-80.
[99] APPEAL from the court op session. JOHN MILLER and Others,-Appellants; GEORGE ROWAN and Another,- Respondents [July 14, 17, 1837]. [Mews' Dig. iii. 304, 376 ; vi. 1830; xv. 1631. On point as to bequest of residue, see Dolan v. Macdermot, 1868, L.R. 3 Ch. 676. As to analogous practice in regard to costs in Probate Division, see Davies v. Gregory, 1873, L.R. 3 P. and D. 31; Boughton v. Knight, 1873, ib. 77-80.] A. B., by trust disposition and settlement, gave all his estate, real and personal, to trustees, with power to' keep up the trust by assumption of new trustees; and he directed them to put out on security 2000, and pay the interest to M. M. for her life, the said sum itself payable to the trustees on her death; and he directed them to apply the residue of his estate to such benevolent and charitable purposes as they should think proper; and if the same should amount to 600 or upwards, he recommended to his said trustees and their foresaids, to vest the same in themselves, and apply the proceeds in yearly payments to faithful domestic servants settled in Glasgow. And if the residue should not amount to 600, he authorized his said trustees to distribute the same to such charitable and benevolent purposes as they should think proper. The residue was found to amount to 12,000. Held, first, that the words " the said sum itself payable to the trustees on her (M. M.'s) death," did not give the 2000 to them beneficially, but it became part of the general estate; and, secondly, that the bequest of the residue was not void for uncertainty. Held, thirdly, that the costs of all the parties ought to be paid out of the residue, as the instrument was obscurely worded, and the residue was SO' much larger than the disponer expected. James Black, surgeon, residing in Glasgow, on the 31st of May 1827, executed a trust disposition and settlement, by which he gave his whole [100] heritable and moveable, real and personal estate of whatever kind, and wherever situated, to J. Maxwell, G. Rowan, and J. Miller, and to such of them as should accept thereof, and to the survivor and survivors of the acceptors, and to' such person or persons aa might be assumed by them, or to' the survivors o r survivor, to' supply the deficiency of such as might die or decline to act, and which they were thereby empowered to do when they should see proper, the major number alive and accepting at the time being always a quorum, as trustees or trustee for the ends, uses, and purposes after specified : viz. in the first place, to pay just debts, etc.; in the second place, to pay certain sums to persons there named ; in the third place, he appointed his said trustees to lend out the sum of 2000 sterling on security, taking the interest of the said sum payable to Mary Maxwell, his cousin, half-yearly during her life, and the, solid principal swm. itself payable to his sarid trustees, or their foresaids, at her death. After directing payment of several specific pecuniary legacies to different relatives by name for their own benefits respectively, and to the directors of several public institutions, for behoof of such institutions respectively, the disponer proceeded thus: " And lastly, my said trustees shall apply the rest and residue of my estate and effects to such benevolent and charitable purposes as they think proper; and if the same shall amount to' 600 sterling or upwards, I recommend to my said trustees', and their foresaids, to execute a deed vesting the same in themselves, and apply the annual proceeds thereof, after deducting expenses, in yearly payments to faithful domestic servants settled in Glasgow or the neighbourhood, who can produce testimonials of 341 V CLABK & FINNELLY. MILLER V. ROWAN [1837] good character and morals from their masters and mistresses after ten years' ser-[101]-vice; no person to be entitled to more than 10 sterling yearly, but as much less as my said trustees shall think proper; and if the free residue of my estate shall not amount to the sum of 600 sterling, I authorize my said trustees to distribute the same to such charitable or benevolent purposes as they may think proper. And I hereby appoint my said trustees, and their foresaids, to be my only executors," etc. Mr. Black died in October 1834, and Mr. Rowan and Mr. Miller, who alone survived him, accepted the office of trustees. They found tho trust property so left to amount to nearly 20,000, leaving, after deducting the sums appointed to specific legacies, a residue of 12,000. In the administration of the trusts two questions arose, first, as to the said sum of =2000, whether Mr. Black intended that sum, after Mary...
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