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REPORTS OF CASES heard in the House of Lords upon Appeals or Writs of Error, and decided during the Session 1819. By Richard Bligh, Barrister-at-Law. Vol. I.

SCOTLAND.

Appeal from the Court of Session (First Division).

Lady ESSEX KER, and Lady MARY KER,—Appellants; JOHN WAUCHOPE, Esq. Writer to the Signet; the Rev. CHARLES BAILLIE; Sir WILLIAM SCOTT, of Ancrunr, Baronet; and Sir HENRY HAY M.DOUGALL, Baronet,—Respondents [Feb. 17, May 3, 1819].

[Commented on in In re Vardon's Trusts 1884, 28 Ch.D. 134, at p. 131; In re Chesham 1886, 31 Ch.D. 466, at p. 473; Dundas v. Dundas 1830, 4 Wils and Sh. 460, at p. 465; Breadalbane's Trustees v. Buckingham (Duchess of) 1840, 2 Dunlop 731, at p. 744; Harvey's Trustees v. Harvey's Trustees 1862, 1. Macph. 345, at p. 353; M'Farlane's Trustees v. Oliver 1882, 9 Rettie 1138, at pp. 1142, 1156; Hewit's Trustees v. Lawson 1891, 18 Rettie 793, at p. 799. See also Rancliffe (Lord) v. Parkyns 1818, 6 Dow 149.]

A. by a testament made an death-bed, bequeaths all his real and personal estates in trust to be sold. The interest of the residue be directed to be paid to B. and C. his heirs-at-law and next of kin, during their lives, etc. The principal of the residue he gave to D. etc. B. and C. reduce the death-bed disposition. The Court held that they could not claim the life-interest given to them, either under the testamentary instrument or as next of kin, for default of disposition. But that the deed not being ab-[2]-solutely void, according to the law of Scotland, was properly admitted in evidence against them to shew the testator's intention, and that D. etc. the residuary legatees, must be compensated out of the life-interest, given to B. and C. for the disappointment occasioned by their act.

John, the late Duke of Roxburgh, by a testamentary disposition, dated the 4th of October, 1790, conveyed his whole unentailed real estate, and his personal estate, to himself, and his heirs whomsoever of his body, whom failing, to the Appellants equally between them and the heirs of their bodies; and failing either of them, to the survivor and the heirs of her body; whom failing, to his heirs of tailzie succeeding to the Earldom and estate of Roxburgh, under burthen of the payment of his debts and funeral expenses, and of all legacies which he might bequeath. On the 5th of November, 1803, the Duke executed another dead, whereby, without revoking the former for the better settlement of his affairs, in the event of his death, agreeably to the instructions given, or to be given by him, in relation thereto, he granted and disponed to the Respondent, John Wauchope, and to James Dundas, Clerks to the Signet, his whole unentailed real estate, (describing particularly all the lands and heritages he held in fee simple,) together with his personal estate, in trust, for the uses, ends, and purposes specified in the following words:—

To the end that my lands, houses, and other heritages, before conveyed, now belonging, or which shall belong to me at my death, may be sold, either in whole or in part, at the discretion of [3] my trustees; and that the produce and prices thereof may be applied to the purposes after-mentioned:—In the first place, for the payment of my death-bed and funeral

H.L. iv.

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