ELIZABETH BLACKETT & Ors v ANTHONY FORSTER'S TRUSTEES (Court of Session)

This settlement, which was executed at Berwick-upon-Tweed, was prepared by Mr Home, writer to the signet, one of the trustees, in the Scotch form, so far as related to the lands of Jardine-field; but in other parts the deed exhibited a mixture of English and Scotch phraseology.

The testator was succeeded by his eldest son, Anthony Forster. Of the four trustees named in the deed, one declined to accept, and Mr Home, though he accepted, did not long survive. The remaining two, who were the defenders in this action, and were Englishmen resident in England, accepted and continued to act.

In these circumstances, the younger children of Richard Blackett concluded against the trustees for payment of their shares of the L.400, with interest, left to their deceased mother in liferent, and to themselves in fee; and they—

Any indirect benefit, in education and subsistence, which the pursuers may be supposed to have received from the advance of the money, can be no bar to their objecting to the loan made to their father, during their minority. It is true that he left them some small provisions, but these were never paid; and the defenders took no benefit from his succession which could infer representation.

The defenders, therefore, aver relevantly, and are entitled to prove that, construed by the law of England, this bequest vested in Mrs Blackett, the pursuers'mother, not only a liferent interest, but a complete right to the principal sum, which she was entitled to dispose of as she thought fit, and, consequently, to apply it to the maintenance of herself and her family; Fearne on Contingent Remainders , 462, 7th ed.; 2 Roper on Legacies , 393, 2d ed.