LADY MARJORIBANKS' TRUSTEES v DAVID ROBERTSON, Sir WILLIAM MARJORIBANKS' TRUSTEES, & Ors (Court of Session)

Upon the death of Mrs Ramsay, in 1821, the above sum of L.3333:6:8 was paid to Sir John Marjoribanks, the husband of Lady Marjoribanks, in whose hands it remained till his death in 1833; and shortly after that event took place, it was accounted for, by his trustees, to Lady Marjoribanks, who survived him.

At the period of Mrs Ramsay's death, the family of Sir John and Lady Marjoribanks stood as follows: Edward, William, Charles, David, Janet, Rachel, Agnes, Mary and Susan, being nine children in all.

Edward Marjoribanks predeceased his father and mother, having died intestate in India, on the 1st of January 1833, in involved circumstances. Charles died in October of the same year, and was represented by his brother, the claimant, David, now David Robertson of Ladykirk, as his sole executor and residuary legatee. William, who became Sir William, died on 22d September 1834, leaving issue, having survived his father, but predeceased his mother one week. The rest of the children were all living.

David Robertson, and other claimants, pleaded —That by the terms of Mrs Ramsay's settlement, the legacy left by her to Lady Marjoribanks and her family vested, at Mrs Ramsay's death, in all the children of Lady Marjoribanks who were alive at that date, although the extent of the share or interest of each might be then unascertained, and dependent on the will of Lady Marjoribanks.

By the expression of the clause there is no power of exclusive appointment: the discretion or pleasure of the donee of the power extends only to the amount of the shares to be given; but, subject to such power to fix the amount of the share, each object must have a share greater or less: no one can be utterly excluded; Kemp, Vesey's Rep. v. 849.