A woman having executed a settlement, conveying her whole fortune to trustees, and afterward directing them to pay certain legacies, but without mentioning how the residue of her funds was to be applied, it was found to belong, not to the trust disponees, but to the granter's next of kin.
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Ann Soutar executed a settlement, by which she conveyed her whole property to Thomas Macgrugar and two other persons, and to the accepter or survivor of them as her trustees.
The granter had an only son, who, prior to the date of the deed, it was rumoured, had died in America. By her settlement she accordingly directed her trustees, after paying her debts and funeral expenses, to pay and deliver the whole residue of her fortune to her son, if he should be heard of within a year after her death; but, in the event of his not appearing, she appointed a variety of legacies to be paid to her relations, amounting in all to £400 Sterling.
The settlement also contained the following clause: “And I hereby appoint my said trustees, or accepter or survivor of them, to pay to the said Andrew Soutar, my brother, if he shall be alive at the time, whatever interest or annual-rent may arise on the aforesaid sum of £400 Sterling, bequeathed to my said legatees, before the term of payment of the said legacies, the same to be paid over to him if alive at the period of twelve months after my decease.”
In the event of the granter's son not appearing, (the event which happened) the deed was silent as to the disposal of the residue of her funds, after payment of the legacies.
At the date of the settlement, Ann Soutar was possessed of money to the amount of £500 in cash, besides her household-furniture. The funds realized by the trustees amounted to £550, so that a balance of £150 remained in their hands, which, they contended, belonged to themselves.
On the other hand, a claim for this sum was made by Andrew Soutar, the brother and representative of Ann, and in a multiplepoinding raised by the trustee, he
Pleaded: The maxim of the Roman law, that Nemo pro parte testatus, pro parte intestaius decedere potest, has no place in our practice. The claimant, therefore, as the next in kin of the deceased, falls to be preferred to that portion of his sister's effects, of which she has not disposed. Had she meant that her trustees should take the residue for their own proper use, she would have said so in express terms; but so far is this from being the case, that her property is conveyed merely to themselves personally, for special purposes, without any mention either of their heirs or assignees.
Answered: The deed in question is a general disposition of the whole of the granter's funds, sub onere of certain legacies, and whatever surplus may remain after these are paid, must of course belong to the disponees; 31st January 1724, Hamilton against. Gordon, No. 3. p. 6588; 10th January 1755, Earl of Crawfurd against Ure, No. 3. p. 3818.
From Mrs. Soutar being possessed of £500, besides her household-furniture, at the time when she made her settlement, she must have been fully aware, that there would be a residue after paying her legacies; and if she had intended this residue for the claimant, it cannot be supposed that she would have made him a special bequest of the interest of the legacies for the year which they were to remain in the hands of the trustees, as, without any such bequest, this sum would just have enlarged the residue to which he would have been entitled as her legal representative.
The Lord Ordinary took the case to report on informations.
The Court, on the grounds stated for Soutar, unanimously preferred him to the residuary fund in the hands of the trustees.
Lord Ordinary, Cullen.For the Claimant, Cathcart.Alt. H. D. Inglis.Clerk, Pringle.
Fac. Coll. No. 212. p. 483.
