Scottish Court of Session Decisions

On May 6, 1803, the late Miss Margaret Ballantine of Castlehill executed a probative deed, by which, on the narrative of her compassion for the necessitous circumstances of orphans, widows, and unmarried women as there mentioned, it was declared that “I have therefore resolved, in the event of my death, to vest the sum of one thousand pounds sterling in the trustees after mentioned, as a perpetual fund, to afford annuities for the better support of five females of the above description, either widows of any age, or orphans under sixteen years of age, and also five more females, unmarried women of the description foresaid, above the age of forty—all the above females natives and inhabitants of the burgh of Ayr, the place of my own nativity and residence; the legal interest of which sum of one thousand pounds sterling, I appoint to be divided and paid equally among the said ten females yearly, beginning the first year's payment thereof at the first term of Whitsunday or Martinmas which shall happen a full year after my death, and that for the year immediately preceding, and so on yearly thereafter in all time coming: And as it is my intention, by a writing under my hand, either hereunto annexed, or a separate writing bearing reference hereto, to nominate the first ten females who are to enjoy the benefit of said annuities or interest of said one thousand pounds sterling immediately after my death, at least so soon as a year's interest of said one thousand pounds sterling shall become due, my trustees after mentioned shall therefore, by their acceptance hereof, be obliged to pay the said interest or annuities, during their respective lives or good behaviour, to the said widows, &c.:” “And to enable them to do so, I hereby give and bequeath, and bind and oblige my heirs, executors, and successors whomsoever, to make payment of the said principal sum of one thousand pounds sterling at the first term of Whitsunday or Martinmas which shall happen after my death, to the Magistrates of the said burgh of Ayr,” and others, who were appointed “trustees for managing the said perpetual fund, and applying the same for the use and behoof of the said ten females of the description foresaid, first to be named and appointed by myself, and thereafter by the said trustees, and failing of my naming all or any of said females, then to be named by the said trustees.” The trustees were empowered to invest the sum of £1000 on heritable security, “and to apply the interest of said principal sum in paying equal annuities to each of the said ten females so to be nominated by me or the said trustees themselves, and that either yearly, half-yearly, quarterly, or in such other payments or moieties as the said trustees shall see proper, and most conducive to the purpose of the charity.” The deed contained a clause, “reserving alwise full power and liberty to me, at any time of my life, to revoke or alter these presents in whole or in part as I shall see fit; and if not altered or revoked, I dispense with the not delivery hereof.”

Afterwards Miss Ballantine executed the following holograph writing, which was addressed “To my Trustees.”

“ Ayr, April, 29, 1831.—Gentlemen, I hereby nominate and appoint the following persons to the benefit of the within charity:—

Mrs William Mitchell, Barns Street, Ayr, £	5	0	0
Mrs William M'Kie's two daughters, residing in Ayr,	5	0	0
Mrs Thomas Baird, residing in Ayr, …	5	0	0
Mrs Stewart Ewing, residing in Ayr, …	5	0	0
Mrs Thomas Hall, residing at Castlehill, …	5	0	0
Miss Jane M'Harg, residing in Edinburgh, …	5	0	0
Misses Mary and Jane Lockhart, residing in Ayr,	5	0	0
Miss Margaret Chalmers, residing in Ayr, …	5	0	0
Miss William Neil, residing in Elbow Street, N. Town,	5	0	0
Janet and Agnes Kerrs, at present servants in the family,	5	0	0

“I also appoint such a sum to be placed in the public funds as is necessary to pay the above annuities, free of legacy duty and independent of legal interest, upon the first term of Whitsunday after my death. This, is wrote upon the twenty-ninth of April, Eighteen hundred and thirty-one.

M. Ballantine.”

The nominees contained in this writ were not all natives of Ayr; nor was the proportion of widows, orphans, and unmarried women above 40 years of age, the same as that contemplated in the deed 1803.

On March 26, 1834, a general trust-settlement was executed by Miss Ballantine, in the form of a probative and attested writ. By that deed she conveyed, mortis causa, her whole moveable estate to the Hon. Roger Rollo and others, as trustees, 1st, to pay debts; 2d, to pay “the several legacies, annuities, and bequests herein contained or referred to, and all others that I may at any future period direct to be paid; and, in particular, without prejudice to the said generality, the legacies after mentioned.” There was then inserted a large list of legacies, varying in amount from £1000 to £10, besides several annuities of £20, £10, and £5, after which the following clause occurred:—“And farther, I request and appoint my said trustees to carry into effect the bequest made by me for charitable purposes, as contained in a deed, of date the sixth day of May, 1803, or thereabouts; which deed I hereby declare is to be held in full force; also to pay any additional legacies, annuities, or donations I may think proper to leave, either by a codicil hereto, or any other writing under my hand. And lastly, whatever residue there may be of my estate and effects hereby conveyed, after payment of the legacies, donations, and annuities left, or to be hereafter left, and all expenses, I appoint to be paid and delivered to James Ballantine, Esq., advocate, who is hereby named and appointed my residuary legatee.” The deed reserved Miss Ballantine's liferent and power of revocation, and contained this clause: “And I revoke all former wills or settlements relative to my personal estate and effects, excepting the deed above referred to.” Miss Ballantine died, leaving a fortune of £22,000, falling under her general settlement. The deed of 1803, the holograph writing of 1831, and the general settlement of 1834, were found in her repositories, inclosed in the same box.

The trustees under the general settlement, being uncertain of the amount which was to be held to be bequeathed in virtue of the deed of 1803, and holograph writ of 1831, raised a multiplepoinding. James Ballantine, of Castlehill, advocate, the residuary legatee, appeared as a claimant on the one hand; and, on the other, the Magistrates of Ayr and others, as trustees for the charitable bequest provided under the deed 1803, and referred to in the holograph writ 1831.

Ballantine pleaded, 1. The holograph writ 1831, differed from the deed 1803 in several essential particulars. The deed 1803 allotted a principal sum of £1000, and the interest thereon, for the purpose of the charity. But the holograph writ, if sustained, directed an investment in the public funds, to provide the annuities therein referred to; and if these last could be contemplated, as perpetual, it would require a sum of £1700 or £1800 to purchase them. Besides this, the nominees specified in the

holograph writ were thirteen in number, in place of ten (though grouped so as to show that only ten annuities were intended); and they were not all chosen either from natives of Ayr, or in the proportion of widows, elderly maidens, and orphans, specified in the deed 1803. The holograph writ, therefore, could not remain in force without innovating on, and materially altering the deed 1803. But on examining the settlement, it would appear that the whole deed 1803, and nothing else, was now in force.

The general settlement, executed in 1834, contained the last expression of the testator's will. It directed the trustees and executors “to carry into effect the bequest by me for charitable purposes, as contained in a deed, of date the 6th day of May, 1803, or thereabouts, which deed I hereby declare is to be held in full force.” The settlement expressly revoked “all former wills or settlements, relative to my personal estate and effects, excepting the deed above referred to.” And it had provided at its commencement for the payment of the legacies mentioned in the settlement, or “others that I may at any future period direct to be paid.” By this settlement, the deed of May, 1803, was alone declared to be in force, and the holograph writ of 1831 was not preserved in force by the insertion of any words which could reach it. And as every other will or settlement, “excepting the deed,” was expressly revoked, words were used which expressly applied to the holograph writ of 1831, as the exception of “the deed” from the revocation, showed, in point of construction, that the revocation of “wills and settlements” included such writs as the holograph writ 1831. 2. Even if the holograph writ were still in force, it was not the intention of the testator thereby to create a permanent annuity of £50. It was merely during the lifetime of her own favoured nominees that this amount of annuity was to subsist; and quoad ultra, the sum of £1000 was to be paid to the competing claimants, the trustees for the perpetual charity, that the interest thereof should be applied in terms of the deed 1803.

The Magistrates of Ayr and others, the Charity trustees, answered. 1. At the date when the testatrix made her will, she set aside a capital sum, such as, at that period, yielded interest to the amount of £50, thereby providing an annuity of £5, to each of the legatees. In the deed itself she declared that “it is my intention, by a writing under my hand, either hereunto annexed, or a separate writing bearing reference hereto, to nominate the first ten females who are to enjoy the benefit of said annuities or interest of said one thousand pounds sterling.” In pursuance of this declared intention the holograph writ of nomination was executed by her, in 1831, and as interest had much fallen, she expressly appointed “such a sum to be placed in the public funds as is necessary to pay the above annuities, free of legacy duty and independent of legal interest, upon the first term of Whitsunday after my death.” Though there were 13 nominees, they were grouped so that only 10 annuities were given, but each annuity was distinctly specified to be £5. And as this document, besides necessarily referring to the deed 1803, by exercising the power of nomination therein reserved, also declared the parties to be appointed “to the benefit of the within charity;” and as the writ was put up in the same box with the deed 1803, and found there at Miss Ballantine's decease, it was clear that the two writs were part and parcel of one and the same deed. Although the writ selected some nominees not natives of Ayr, &c, this was clearly within the power of the testatrix, and was immaterial, provided it was clear that she intended both the writ and the deed 1803 to receive effect. There was nothing in the general settlement of 1834 which could touch this writ, as the deed 1803 was expressly declared to remain in full force, and the relative holograph writ, 1831, was part and parcel of that deed. 2, There was no reason for considering that the 10 annuities payable to the nominees in the writ 1831, were to be on any different footing from the future annuities payable to succeeding nominees.

The Lord Ordinary reported the cause on cases.