Scottish Court of Session Decisions

The late James Scoular, engineer, Glasgow, who died in December 1865, executed a holograph testament whereby he appointed A. M. Robertson, R. Macalister, and J. Fraser his sole executors and administrators, with full powers as such; declaring that these parties “shall be accountable to the residuary legatees hereinafter named for their intromission in virtue herein.” Certain legacies were appointed to be paid to various benevolent institutions, and various bequests made to different persons. The deed then ran thus:—“If there is as much money left after all the bequests is fully made, I appoint my executors to pay the Government legacy tax on all the legacies, and if any return ever comes from the Western Bank, as I paid all the calls in full, my executors is fully impowered to give in proportional parts to the above mentioned institutions and persons mentioned. And I do hereby expressly exclude all my half brothers and sisters, viz., Alexander Scoular and his heirs, and Andrew Scoular and his heirs, and my half sister Grisel or Grace Scoular, since deceased, and her heirs, and all my other relatives and next of kin from any right or interest in my moveable succession.”

Alexander and Andrew Scoular and others, as next of kin of the deceased, now contented, in an action of multiplepoinding raised in the name of the trustees, that there was no nomination of residuary legatees in the said testament, nor any disposal by the testator of the residue of his estate, and claimed the whole find in medio as intestate succession, falling to the next of kin.

The claim was resisted by the institutions and persons named as legatees, who claimed proportional shares in any residue which remained after satisfying the special purposes of the testament.