Scottish Court of Session Decisions

This petition was presented to the Court “for approval of a deed of trust, and constitution of the school and funds connected therewith, founded by the late William Muir Esq.”

Mr Muir died January 1, 1869, leaving £15,000 for endowment of schools under certain conditions by will, dated November 1865, and he nominated a body of trustees and directors, but added that “no Papist, no Puseyite, no Tractarian, no Socinian, no Arian, nor any man who by acts or speech was to defend or excuse or propagate the principles or practice of these sects,… should be allowed to be directors or trustees.” This will was holograph, but there were a number of blanks in it, some filled up in pencil and some left entirely blank. There was also found a prior holograph will, completely written out in ink without blanks, and having four codicils, all being dated 29th April 1864.

On 3d March 1870, a Special Case was submitted to the First Division, by the executors on the first part; the legatees under the last will (other than the School trustees and directors) of the second part; and the then acting school-trustees of the third part. The questions in this special case were disposed of by interlocutor of 18th May 1870 as follows—“ Edinburgh, 18 th May 1870—The Lords having heard counsel on this Special Case as now amended, find and declare, 1 st, that the parties of the second part are entitled to payment of the annuities and legacies bequeathed to them by the will of 30th November 1865, at the terms specified, and primo loco and preferably to the bequest to the parties of the third part; 2d, find that in the event of there not being funds sufficient, after paying the legacies and providing for the annuities to the parties of the second part, to pay the school bequest in full, the free balance of the estate is not to be retained by the parties of the first part, as executors of the deceased, until it shall amount (by the falling in of annuities or otherwise) to £15,000, but that the executors are bound to pay over said balance forthwith, additional payments being made by them from time to time to the parties of the third part, as funds become available; 3d, find that the succession duty in the bequest of £15,000 falls to be paid out of the balance remaining in the hands of the executors, after paying and providing for the legacies and annuities to the parties of the second part, and decern.”

The petition set forth that of the £15,000, £8,500 had been paid over to the School Trustees, £5000 had been eligibly invested, and there was a good prospect of obtaining an investment for the rest. The School Trustees, petitioners, applied to the Court to approve a deed of trust and constitution as they now had sufficient income to afford a prospect of at once commencing the school, and the testator had expressed a wish that this should be done as soon as circumstances should put it in their power, without waiting until the full £15,000 was paid over. The prayer of the petition was “to approve of and authorise them to institute and put in operation the said school as at Martinmas 1873; and further, to approve of the proposed deed of trust and constitution of the said school, and of the several funds therewith connected, in terms of the draft thereof appended to this petition, or in such other terms as may be thought proper by your Lordships; and on the said draft deed being so adjusted and approved, to interpone authority thereto, and appoint the same to be extended, and thereupon to ordain and oppoint the petitioners to execute the same; or to do otherwise in the premises as to your Lordships shall seem proper.”

Authorities quoted in support of the application —Alexander Morrison, June 30, 1863, 1 Macph. 1009; Low, November 17, 1865, 4 Macph. 45; University of Aberdeen v. Irvine, 6 Macph. H.L. 29.

The Court would not consider the draft scheme suggested by the Petitioners acting ex parte, but remitted to Mr Robert Lee, Advocate, to prepare a scheme and report.