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expenses, and of the expenses of management and executing this trust: Secondly, for and in payment of all the just and lawful debts, which shall be owing by me at my death: Thirdly, for payment and satisfaction of all obligations, legacies, annuities, donations, or other bequests granted, or to be granted, by me to any person or persons whatsoever, by any bond, deed, missive, memorandum, codicil, or other writing whatsoever, expressive of my will and intention, executed at any time of my life, and even upon death bed: And lastly, the whole residue, remainder, and surplus, of my said estate and effects, shall be conveyed and made over or applied and employed by my said trustees or trustee acting for the time, to and in favour of such person or persons, or for such uses and purposes, as I have directed, or shall direct, by any deed, missive, memorandum, or other writing, executed, or to be executed, by me to that effect.
The trust disposition also, in the events of the trustees not accepting or declining to execute the trust, makes the following provision:—
Then, and in either of these cases, the lands and other heritages and debts, and sums of money, and other subjects and effects, hereby disponed, shall fall and belong to such person or persons, and be applied to such uses and purposes as I have directed, or shall by any deed, [4] missive, memorandum, codicil, or other writing of the date hereof, or of any other date or dates, direct and appoint; and failing such appointment, then to the person or persons whom I shall appoint to be my residuary legates or legatees.
By a subsequent clause, the trust-deed nominates the trustees, and failing them, the residuary legatees, to be the Duke's executors and administrators of his estate and effects, excluding all others his nearest of kin and executors from these offices, By a writing executed at the same time with the last-mentioned trust deed, the Duke declared, "That in the event of his sudden death, or in the event that he should be prevented from executing a deed of instructions, it was his will, that the deed which he formerly made in favour of the Appellants, should be carried into effect so far as regarded them."
In the beginning of March, 1804, the Duke fell sick with the complaint of which he died. On the 19th of the same month, he executed an instrument, by which he directed the Respondent, John Wauchope, and James Dundas, as trustees named in the settlement of the 5th of November, 1803, to sell and dispose of his whole (unentailed) real estate in Scotland, and his house in St. James's-square, London, and from the produce thereof, and of his personal estate, after payment of certain annuities and legacies in the deed specified, and of his debts, funeral charges, and expenses of management, he authorized them to invest the whole residue and remainder of the property thereby bequeathed, [5] in the public funds, or upon real security, in Scotland, and he thereby
directed his trustees to pay annually the dividends and interest, equally between the Appellants; and failing either of them to the survivor, during their lives, or that of the survivor; and upon the death of the survivor, to pay over the residue to Sir John Scott, (father of the Respondent, Sir William Scott,) and the Respondents Charles Baillie Hamilton, and Sir Henry Hay M'Dougall, and their executors and assignees, in the proportions therein specified.
The Duke died without issue upon the day on which this last mentioned instrument was executed, leaving the Appellants his heirs-at-law and sole next of kin. Immediately after his death, the Appellants brought an action in the Court of Session, to reduce this dead; and obtained a judgment, by which it was found, that being executed on death-bed, it was inept, so far as it conveyed lands; in consequence of which, the dead was set aside, and the Appellants' right to the lands, as heirs-at-law, established upon appeal to the House of Lords. [5 Pat. 547.]
After a lapse of some years, the Respondent Wauchope, who alone had accepted and acted in the trust, brought an action of multiple-poinding, for the purpose of ascertaining, judicially, the respective rights of the parties claiming adverse interests in the trust-fund remaining in his bands. When the cause was brought before the Lord Ordinary, he ordered the parties to state their respective claims in writing. The Appellants claimed a life-interest, in the residuary personal estate in the precise terms of the trust-deed; or [6] if the Court should be of opinion, that, having rejected and annulled that deed in one respect, they could not avail themselves of any of its provisions, then, in the character of the Duke's next of kin, they claimed the profits of the residue of his property during their lives, and the life of the survivor, as a subject not disposed of by his will. On the other hand, the Respond-
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