1827.

THE EARL OF

STAIR

v.

MACGILL

and others.

every one who was to succeed to his real property purchased in those counties in which he directed the purchase to be made: these words, "interest and proceeds" may not be satisfied by a much more limited construction of them than that construction which would make them mean interest and proceeds as they accrue, and may be received until the money shall be so laid out; so that though this should happen to be a title which is to last for ever, if we were to apply such a principle to money to be laid out in lands, the subject of inheritance, as other lands are in Scotland, it might turn out that no one person to whom the benefit of that devise was intended might enjoy any part of that benefit but the ultimate remainder-man.

It is therefore, I apprehend, not upon any purpose of your Lordships of applying this general rule which has been laid down in the Courts of Equity here, that you are now called upon to reverse, in effect by expressing your opinion, this determination of the Court of Session in Scotland; but you are called upon to do so, because, at least, according to my view of the case, you are thereby effectuating what upon the legal and best construction of this will is the authorized construction of this will; authorized I mean by the principles on which you are authorized to construe all wills. Upon the authorized construction of this will you are determining that that benefit shall be given to Lord Stair which you think it consistent with the true intent and meaning of this will should be given to him.

Upon these grounds, therefore, it is that I perfectly agree in the general purpose expressed in the proposition stated by my noble friend. I am also of opinion that as the late Lord Stair has created this question himself by the manner in which he has ex

pressed himself respecting this purchase and this interest, the expense of deciding this question must fall upon the fund with reference to which the question

has arisen.

This House is of opinion that, according to the true construction of the trust disposition in question, the same ought to be considered as containing a gift of all and sundry lands and heritages of John, late Earl of Stair, other than and except those contained in any deed of entail executed by him, and also all and sundry debts and sums of money, heritable and moveable, owing to him in England or in Scotland, and elsewhere, rents of land, goods, gear, and moveable effects whatever presently pertaining and belonging to him, or that should pertain and belong to him at his death, excepting the furniture in his house at Culhorn, together with the interest and proceeds of such several funds after mentioned to the Appellant, and the several persons who may become entitled in succession to the lands of Culquhasen and others, by virtue of the disposition and tailzie of the said lands of Culquhasen and others, according to the several rights and interests of the Appellant, and of such several persons successively in the said lands of Culquhasen and others, by virtue of such entail, subject nevertheless to the costs and expenses of the execution of the trusts of the trust-disposition in question, except the particular costs and expenses after mentioned, and also subject to the payment of the several legacies and annuities in the said trust-disposition mentioned: And this House is therefore of opinion that the Appellant was and is entitled, and that the several persons who shall from time to time succeed him in the entail of the said lands of Culquhasen and others, according to the course of such entail, will be from time to time entitled to the interest and proceeds of the whole of the trust funds which have arisen from the end of the twelvemonth usually allowed, according to the course of the law of Scotland, for payment of the debts and legacies, and which shall arise until the whole of the capital of the said trust funds with the interest and proceeds thereof, which have accrued prior to the expiration of the twelvemonth shall have been applied in the purchase of lands according to the directions contained in the trustdisposition, after deducting out of such capital, and out of the interest and proceeds accrued prior to the expiration of such

1827.

THE EARL OF
STAIR

v.

MACGILL and others,

June 18.

1827.

THE EARL OF

STAIR

v. MACGILL

and others.

twelve months, all costs and expenses attending the execution of the trusts declared by this trust-disposition, except the costs and expenses attending the collection and application of such interest and proceeds which have accrued, and which shall accrue after the expiration of such twelve months, which lastmentioned costs and expenses this House is of opinion ought to be deducted out of such interest and proceeds only; and this House is therefore of opinion that the costs of all parties to this suit, including the costs of this appeal, in as much as the same particularly concern the question respecting the right to such interest and proceeds, ought to be paid out of such interest and proceeds, as part of the costs of the application thereof; and this House is of opinion that according to the directions contained in the said trust-disposition, the annuities thereby given ought to be secured by the appropriation of a sufficient part of the capital of the said trust funds; that funds should be set apart to answer those annuities, and that the funds which shall be appropriated for such purpose ought from time to time, as such annuities shall respectively cease and be determined, to be applied in the purchase of lands as part of the capital of the said trust funds, and that the interest and proceeds of the funds which shall be so appropriated after payment of such annuities respectively, but subject thereto, ought to be paid from time to time as the same shall accrue to the Appellant, and to such other person and persons as shall from time to time succeed to the Appellant under the entail aforesaid, as part of the interest and proceeds of the capital directed to be applied in the purchase of lands as aforesaid: And it is therefore ordered that the cause be remitted back to the Court of Session to review all the several interlocutors pronounced in this cause, and to make such orders respecting the same, and in execution of the trusts aforesaid, as shall be consistent with the opinions so declared by this House, and as shall be just.

685

INDEX.

ACCOUNT. Vide PLEADING, 3.

ACQUIESCENCE. Vide SOLICITOR AND CLIENT.
AGENT. Vide SOLICITOR AND CLIENT.

AGREEMENT. Vide SIMONY.

A., being a younger child, becomes entitled, upon the death
of her father, by his appointment under a marriage settle-
ment, to
,, as a portion charged on lands, and to
1,500, under his will, charging only his personalty. The
other younger children become entitled to similar por-
tions and bequests. The widow was entitled to a jointure
under the settlement, and plate and household furniture
under the will; B. (as eldest son,) enters upon the estate,
under the limitations of the settlement, and being in pos-
session, carries on a correspondence on the subject of an
increase of the jointure of the widow, and the portions
of the younger children with W., a common friend of the
family, acting as the agent of B., as well as the widow
and younger children. In the course of this correspon-
dence, he proposes by letter, on certain conditions, to in-
crease the portions of his brothers and sister, and the
jointure of his mother, and gives directions to one of his
brothers to pay the increased jointure, and the interest
upon the increased portions, which is done accordingly.
After the interest had been paid for one year, a treaty of
marriage was commenced between A. and C., who applied
to the common friend to ascertain the amount of A.'s for-
tune, and was informed by him of the correspondence
with B., and that he had authority to state, that 4,000/
was the amount of A.'s portion, to be secured on B.'s
estate. Upon the faith of this communication, A. and C.
intermarried. The interest upon the increased portion

was paid by the agent of B. to A. and C., for three years
after the marriage. B., in the mean time, had possessed,
in consequence of the correspondence, part of the per-
sonalty which belonged to the widow and younger children
under the will; and had received without objection, ac-
counts from his agent, including the allowances paid to the
widow, and the younger children, by way of interest upon
the increased portions.

Upon a bill by A. and C., to enforce the payment of the in-
creased portion, to which the widow and the other younger
children were Defendants, and by their answers submitted
to perform the conditions on which the increase of por-
tion and jointure was proposed: Held, that the effect of
the correspondence, with all the circumstances of the case,
amounted to an agreement which a Court of Equity ought
to enforce.

66
-

In the letter on which the husband and wife relied, as the
agreement in consideration of marriage, B. says,-"I can
never be reconciled to the marriage, &c." Then he pro-
ceeds to speak of the arrangement between him and his
family, and repeats his part of the agreement as to the
younger children ;- '4,000l. each, to be secured on cer-
tain lands; my sister's to be secured to herself for life;
then among her children, &c." After stating the con-
ditions for this increase of portion, he concludes :-" This,
I think, is an abstract of the agreement, and, when put
into the form of a deed, if assented to by them, I am ready
to execute at any time." And he adds:- I will not
entangle myself with Mr. J. R. (the husband). If this
match goes on, I will neither meddle nor make with it or
their settlements."

-

Whether such a letter written before the marriage, to W.,
the common friend, and in the circumstances before men-
tioned, could be enforced as an agreement in consideration
of marriage. Quære.
Quære. Montgomery v. Reilly and

APPEAL. Vide CHARITY, 1. PRACTICE, 2.

P. 364

ATTORNEY AND CLIENT. Vide SOLICITOR AND CLIENT.

ATTORNEY GENERAL. Vide CHARITY, 1.

BILL OF REVIVOR. Vide PLEADING, 1.