Scottish Court of Session Decisions

Janet Martin died in 1847 leaving a trust-disposition and settlement whereby she disponed and conveyed to her trustees and executors her whole means and estate, empowering them to sell and dispose of the heritable subjects disponed to them, and of her whole other estate. The purposes of the trust were for payment of the truster's debts, and of certain legacies and annuities; and (6), for payment to John Martin of an additional or deferred legacy of £3000, and to Thomas Young an additional or deferred legacy of £5000, these legacies not to be payable till the death of the truster's niece Anne Gordon Martin, who was to liferent the capital of the legacies. (8) After payment of certain of the legacies and bequests, and upon setting apart a fund to meet the deferred legacies in article 6, the trustees were, on obtaining the consent of one of the annuitants, to “have it in their power to convey and make over and pay over to the said Anne Gordon Martin, whom I hereby appoint my residuary legatee, the whole residue and remainder of my means and estate, heritable and moveable, hereby conveyed,” under burden of the annuities, and of all claims against the trust-funds, and thus to bring the trust to a close. Janet Martin left a considerable amount of property, consisting partly of heritable subjects, partly of heritable bonds, and partly of moveable property. The trustees entered on the administration of the trust, and paid the truster's debts and legacies. Anne Gordon Martin did not obtain a conveyance from Janet Martin's trustees. She died in 1862 intestate and unmarried. Two actions were raised—an action of multiplepoinding at the instance of Janet Martin's trustees, and an action of declarator at the instance of Thomas and James Young, executors qua nearest of kin of Anne Gordon Martin. It had already been held by the Court, in the conjoined actions, in a question between Thomas and James Young, claiming as Anne Martin's executors, and John Martin claiming as her heir-at-law, that the residuary estate of Janet Martin, to which Anne Martin had a jus crediti at the time of her death, had not been constructively converted, so as to become personal estate, descending to her executors, but that Anne Martin's right in the succession of her aunt, so far as heritable, went to her heir, and so far as moveable, to her executor.

The present question related to a plea maintained by Anne Martin's executors, to the effect that Janet Martin having charged her whole estate, heritable as well as moveable, with the payment of debts, legacies, and trust expenses, such debts, legacies, and trust expenses were chargeable upon the whole heritable and moveable estates rateably, according to their respective values.

The Lord Ordinary ( Jerviswoode) repelled this

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plea, adding this note:—“The Lord Ordinary, in pronouncing the preceding interlocutor, has proceeded on the footing and principle that, as the trust-deed by Miss Martin contains a general direction to the trustees in the outset for payment of debts, it was the duty of the trustees to devote, in the first instance, the general estates of the truster towards the fulfilment of that direction, and that it was not within the power or right of the trustees to apply the subject of a special bequest to the payment of debts, so as to defeat the intention of the truster as respected each bequest.

“Applying this principle here, the Lord Ordinary assumes that the fact of the trustees having uplifted and applied the sums contained in the heritable bond to the payment of debts, cannot affect the question of succession to the truster's estate, in accordance with the terms of the deed of trust; and if it be the rule of law, as the Lord Ordinary holds, that bequests or legacies of sums of money are, apart from special direction, a direct burden upon the executry or moveable estate, he is at a loss to understand on what footing it can be successfully maintained for the claimants, the Messrs Young, that in this instance the £3000 and £5000 bequests are here to be charged as a burden primarily against the heritable estate. There is not an expression in the deed which will suffice to lead to that conclusion.”

The executors reclaimed.