Ker (Lady Essex) and Ker (Lady Mart) v Wauchope (Esq. Writer to the Signet) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1819 |
| Date | 03 May 1819 |
| Court | House of Lords |
English Reports Citation: 4 E.R. 1
APPEAL FROM THE COURT OF SESSION (FIRST DIVISION).
Commented on in In re Vardon's Trusts 1884, 28 Ch.D. 124, at p. 131; In re Chesham 1886, 31 Ch.D. 466, at p. 473; Dundas v. Dundas 1830, 4 Wils and Sh. 460, at p. 465; Breadalbane's Trustees v. Buckingham (Duchess of) 1840, 2 Dunlop 731, at p. 744; Harvey's Trustees v. Harvey's Trustees 1862, 1 Macph. 345, at p. 353; M'Farlane's Trustees v. Oliver 1882, 9 Rettie 1138, at pp. 1142, 1156; Hewit's Trustees v. Lawson 1891, 18 Rettie 793, at p. 799. See also Rancliffe (Lord) v. Parkyns 1818, 6 Dow 149.
REPORTS OF CASES heard in the House of Lords upon Appeals or Writs of Error, and decided during the Session 1819. By richard bligh, Barrister-at-Law. Yol. I. SCOTLAND. appeal from the court op session (first division). lady ESSEX KER, and lady MART KER,-Appellants; JOHN WAUCHOPE, Esq. Writer to the Signet; the Rev. CHARLES BAILLIE; Sir WILLIAM SCOTT, of Ancrunr, Baronet; and Sir HENRY HAY M'DOUGALL, Baronet - Respondents [Feb. 17, May 3, 1819]. [Commented on in In re Vardon's Trusts 1884, 28 Ch.D. 124, at p. 131; In re Ckesham 1886, 31 Ch.D. 466, at p. 473 ; Dundas v. Dundas 1830, 4 Wils and Sh. 460, at p. 465; Breadalbane's Trustees v. Buckingham (Duchess of) 1840, 2 Dunlop 731, at p. 744; Harvey's Trustees v. Harvey's Trustees 1862, 1 Macph. 345, at p. 353; M'Farlane's Trustees v. Oliver 1882, 9 Rettie 1138, at pp. 1142, 1156; Hewit's Trustees v. Lawson 1891, 18 Rettie 793, at p. 799. See also Rcmcliffe (Lord) v. Parkyns 1818, 6 Dow 149.] A. by a testament made on death-bed, bequeaths all his real and personal estates in trust to be sold. The interest of the residue he directed to be paid to B. and C. his heirs-at-law and next of kin, during their lives, etc. The principal of the residue he gave to D. etc. B. and C. reduce the death-bed disposition. The Court held that they could not claim the life-interest given to them, either under the testamentary instrument or as next of kin, for default of disposition. But that the deed not being ab-[2]-solutely void, according to the law of Scotland, was properly admitted in evidence against them to shew the testator's intention, and that D. etc. the residuary legatees, must be compensated out of the life-interest, given to B. and C. for the disappointment occasioned by their act. John, the late Duke of Roxburgh, by a testamentary disposition, dated the 4th of October, 1790, conveyed his whole unentailed real estate, and his personal estate, to himself, and his heirs whomsoever of his body, whom failing, to the Appellants equally between them and the heirs of their bodies; and failing either of them, to the survivor and the heirs of her body; whom failing, to hisi heirs of tailzie succeeding to the Earldom and estate of Roxburgh, under burthen of the payment of his debts and funeral expenses, and of all legacies which he might bequeath. On the 5th of November, 1803, the Duke executed another deed, whereby, without revoking the former for the better settlement of his affairs, in the event of his death, agreeably to the instructions given, or to be given by him, in relation thereto, he granted and dis-poned to the Respondent, John Wauchope, and to James Dundas, Clerks to the Signet, his whole unentailed real estate, (describing particularly all the lands and heritages he held in fee simple,) together with his personal estate, in trust, for the uses, ends, and purposes specified in the following words:-" To the end that my lands, houses, and other heritages, before conveyed, now belonging, or which shall belong to me at my death, may be sold, either in whole or in part, at the discretion of [3] my trustees; and that the produce and prices thereof may be applied to the purposes after-mentioned:-In the first place, for the payment of my death-bed and funeral H.L. iv. 1 1 I BUGH. KEE V. WAUCHOPE [1819] expenses, and of the expenses, of management and executing this trust; Secondly, for and in payment of all the just and lawful debts, which shall be owing by me at my death: Thirdly, for payment and satisfaction of all obligations, legacies, annuities, donations, or other bequests granted, or to be granted, by me to any person or persons whatsoever, by any bond, deed, missive, memorandum, codicil, or other writing whatsoever, expressive of my will and intention, executed at any time of my life, and even upon death-bed : And lastly, the whole residue, remainder, and surplus, of my said estate and effects, shall be conveyed and made over or applied and employed by my said trustees or trustee acting for the time, to; and in favour of swell person or persons, or for such uses and purposes, as I have directed, or shall direct, by any deed, missive, memorandum, or other writing, executed, or to be executed, by me to that effect." The trust disposition also, in the events of the trustees not accepting or declining to execute the trust, makes the following provision :-" Then, and in either of these cases, the lands and other heritages and debts, and sums of money, and other subjects and effects, hereby disponed, shall fall and belong to such person or persons, and be applied to such uses and purposes as I have directed, or shall by any deed, [4] missive, memorandum, codicil, or other writing of the date hereof, or of any other date or dates, direct and appoint; and failing such appoint ment, then to the person or persons whom I shall appoint to be my residuary legatee or legatees." By a subsequent clause, the trusi deed nominates the trustees, and failing them, the residuary legatees, to be the Duke's executors and administrators of his estate and effects, excluding all others his nearest of kin and executors from these offices. By a writing executed at the same time with the last-mentioned trust-deed, the Duke declared, " That in the event of his sudden death, or in the event that he should be prevented from executing a deed of instructions, it was his will, that the deed which he formerly made in favour of the Appellants, should be carried into effect so far as regarded them." In the beginning of March, 1804, the Duke fell sick with the complaint of which he died. On the 19th of the same month, lie executed an instrument, by which he directed the Respondent, John Wauchope, and James Dundas, as trustees named in the settlement of the 5th of November, 1803, to sell and dispose of his whole (unentailed) real estate in Scotland, and his house in St. James's-square, London, and from the produce thereof, and of his personal estate, after payment of certain annuities and legacies in the deed specified, and of his debts, funeral charges, and expenses of management, he authorized them to invest the whole residue and remainder of the property thereby bequeathed, [5] in the public funds, or upon real security, in Scotland, and he thereby " directed his trustees to pay annually the dividends and interest, equally between the Appellants; and failing either of them, to the survivor, during their lives, or that of the survivor; and upon the death of the survivor, to pay over the residue to Sir John Scott, (father of the Respondent, Sir William Scott,) and the Respondents Charles Baillie Hamilton, and Sir Henry Hay M'Dougall, and their executors and assignees, in the proportions therein specified." The Duke died without issue upon the day on which this last mentioned instrument was executed, leaving the Appellants his heirs-at law and sole next of kin. Immediately after his death, the Appellants brought an action in the Court of Session, to reduce this deed; and obtained a judgment, by which it was found, that being executed on death-bed, it was inept, so far as it conveyed lands; in consequence of which, the deed was set aside, and the Appellants' right to the lands, as heirs-at-law, established upon appeal to the House of Lords. [5 Pat. 547.] After a lapse of some years, the Respondent Wauchope, who alone had accepted and acted in the trust, brought an action of multiple-poinding, for the purpose of ascertaining, judicially, the respective rights of the parties claiming adverse interests in the trustfund remaining in his hands. When the cause was brought before the Lord Ordinary, he ordered the parties to state their respective claims in writing. The Appellants claimed a life-interest in the residuary personal estate in the precise terms of the trust-deed; or [6] if the Court should be of opinion, that, having rejected and annulled that deed in one respect, they could not avail themselves of any of its provisions, then, in the character of the Duke's next of kin, they claimed the profits of the residue of his property during their lives, and the life of the survivor, as a subject not disposed of by his will. On the other hand, the Respond- 2 KBR V. WAUOHOPE [1819] I BLIGH. ents, Hamilton and M'Dougall and Sir J. Scott, insisted, that they were not only entitled to the capital of the funds after the death of the Appellants, and the survivor of them, but that they were entitled to the profits during the lives of the Appellants ; upon the ground that the Appellants having reprobated the deed so far as it contemplated the disposal of land in Scotland, could take not benefit under that deed. Upon these respective statements of claims, the Lord Ordinary, having heard Counsel, pronounced an interlocutor, by which, after reciting, to the effect before stated, the substance of the deeds dated the 14th of October, 1790, the 5th of November, 1803, with the writing or signed declaration of the same date, and the principal deed in question of the 19th of March, 1804; and after finding as facts the signature and execution of these several instruments, the action brought by the Appellants, and the consequent...
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