In re: WILLIAM STEWART DECEASED.
I William Stewart Merchant in Greenock in order to settle my affairs so as to prevent all disputes relative to the succession to my means and estate after my decease do hereby give grant assign dispone and convey from me my heirs and successors To and in favor of the Reverend Robert Paton Minister of Straiton James Stewart my nephew on his attaining majority Robert Dow Ker Merchant in Greenock Walter Baine Junior Merchant there and John McGregor Merchant there, and to such other person or persons as I may hereafter appoint or they may assume in virtue of the powers hereinafter committed to them and to the acceptors or acceptor survivors or survivor of them, the major part alive, qualified to act, and accepting, at the time being a quorum, as trustees for the uses ends and purposes after mentioned, and to the assignees of the said disponees, heritably and irredeemably All and sundry my lands, tenements and heritages whatsoever, heritable bonds, mortgages, claims, rights and interests, and generally my whole heritable subjects of every description whether situated in Great Britain or in Newfoundland or elsewhere abroad and that whether leasehold or freehold or by whatever other tenure held presently belonging or which shall belong to me at the time of my death with the whole writs title deeds, grounds evidents and securities of the same with all that has followed or may be competent to follow thereon: and in like manner my whole goods and gear ships shares of ships Barques and Vessels Stock in trade at home and abroad debts sums of money household furniture and plenishing and effects whatsoever and generally my whole means and estate heritable and moveable real and personal now belonging or that may belong to me at the time of my death: And I do hereby make and constitute my said Trustees and their foresaids my lawful cessioners and assignees not only in and to the whole moveable estate now belonging or that shall belong to me at the time of my death but also in and to the whole writs documents vouchers and instructions of the same with all that has followed or may follow thereon Surrogating hereby and substituting my said Trustees and their foresaids in my full right title and place of the premises: In which lands and heritages I bind and oblige me my heirs and successors to infeft and lease my said Trustees and such other person or persons as I may hereafter appoint or they may assume and the acceptors or acceptor Survivors or survivor of them the major part alive and accepting at the time being always a quorum as Trustees for the ends uses and purposes after mentioned to be holden a me vel de me and for that purpose to grant procurators of resignation precepts of Sasine and all other writings necessary for vesting my said Trustees in my said heritable Estate: All which subjects heritable and moveable above disponed are conveyed by me in trust for the uses ends and purposes and under the conditions and reservations after specified:
In the first place my said trustees shall out of the first and readiest of my means and estate pay off all my just and lawful debts sickbed and funeral charges and the expenses attending the execution of this Trust:
In the Second place I hereby direct and authorise my said Trustees with all convenient and prudent speed after my death and in such way and manner as they shall see fit and expedient to sell and convert into cash my whole means and estate heritable and moveable before generally conveyed, with the exception. First, of my estate and lands of Blackhouse near Largs in the County of Ayr, which are to be specially disponed by my Trustees in manner aftermentioned: with the exception (Second) of my household furniture, silver plate and other plenishing, carriage and horses which my trustees are specially to convey to my spouse in the event hereinafter mentioned with the exception (Third) of any real or leasehold property in lands or houses belonging to me in Newfoundland with the exception (Fourth) of my tenements of land and heritable subjects in the Vennel, Innerkip Street and West Shaw Street of Greenock (which tenements of land are held by me pro indiviso with the representative of my deceased brother James Stewart) and (Fifth) with the exception of my house and grounds at Shefield in Greenock which properties in the Third, Fourth, and Fifth places above enumerated are however to be sold by my said Trustees at such times and in such manner as they may see fit as parts of my general estate hereby conveyed. But I hereby declare as an alternative of the said direction to sell that my said Trustees in the exercise of their discretion or in their option (which discretion and option I hereby confer upon them) may dispone and convey the same in kind to such or any one of my relatives after mentioned, as may express or wish to have the said properties or parts thereof conveyed to them, at such valuations as may be agreed upon between my said Trustees and my said relatives and the recipients shall take the same protanto of their share of my means and estate: And where sales of any part of my estate shall be deemed necessary my said Trustees shall have power to make such sales, either by public roup or by private bargain as they shall see fit; and my said Trustees shall also have power to submit to arbitration compound and transact all disputed and doubtful claims and demands in reference to my said estate and generally to do everything that I could have done before granting hereof:
In the third place my said Trustees shall so soon as they shall have funds sufficient for the purpose pay over to Mrs. Eliza Paton or Stewart my spouse should she survive me the sum of Five thousand pounds sterling and that over and above any sums of money which may be in my hands belonging to my said spouse derived by her as next of kin or otherwise through her deceased relatives and which sums as they shall appear in an account in my Books I also direct my said Trustees to pay to her and also deliver over to her my carriage and horses, together with the whole household furniture and plenishing silver plate and china napery and other household plenishing which shall belong to me at the time of my death to be used and enjoyed by her as her own absolute property in any way she may see fit; and should the said Mrs. Eliza Paton or Stewart predecease me I direct and appoint my said trustees to pay over to her next of kin or assignees the foresaid sum of Five thousand pounds in such way and in such proportions as she may direct by a writing under her hand or to divide the same among her next of kin according to the disposition of law if no such writing shall be found to exist: And should she so predecease me in that event I direct my said Trustees to sell off my said household furniture and plenishing, carriage and horses as parts of my general estate:
In the fourth place my said Trustees shall over and above the said sum of five thousand pounds also pay to my said spouse a free liferent annuity or jointure of one thousand pounds sterling payable the said annuity at two terms in the year, Martinmas and Whitsunday by equal portions with interest thereof from the period of my death beginning the first payment of said annuity at the first of these terms that shall happen after my decease for the period between the time of my death and the said term of payment and thereafter half yearly and termly with interest till paid and for that purpose my said Trustees may either purchase such an annuity out of an Insurance office to be approved of by my said spouse or lay out such a sum of principal at interest on good heritable or personal security as shall produce a sum adequate to such annuity either mode of securing the said annuity being in the option of my said Trustees
In the fifth place as my said spouse is already infeft in liferent in my said house and grounds of Seafield and as I am desirous that in the event of my building a Mansion house on my said Estate of Blackhouse she should have it in her option either, to possess, during her lifetime such Mansion house and the garden and any grounds and offices that may be attached thereto and in my natural possession at the time of my death (but excluding therefrom the lands in the occupancy of my tenants) or to possess my said house and grounds at Seafield (such option to be made within two years after my decease and intimated to my said Trustees in writing); and in case she shall determine to occupy the said Mansion House and garden, grounds and offices at Blackhouse then I hereby declare that her said liferent of Seafield shall cease and determine and she shall then be bound and obliged to execute a formal renunciation of her foresaid liferent therein in favor of my said Trustees and their foresaids which whole provisions foresaid conceived in favor of my said spouse shall be accepted by her in full payment and satisfaction of all terce of lands jus relictae half or third of moveables, former provisions by me in her favor, or any other right, legal or conventional, which my said spouse in the event of her surviving me, can claim in and through my death or which her executors or next of kin in the event of her predeceasing me may or can claim from me or my heirs and representatives.
In the sixth place I hereby direct and appoint my said trustees to pay by way of legacy to each of the children of Archibald Laird Fenar in Greenock the sum of Five hundred pounds sterling and should any of such children predecease me leaving issue then the legacy or legacies which would have belonged to the predeceasing parents shall belong to such issue equally: Declaring that the said legacy or legacies payable to such of the said children as are females shall be so payable exclusive of the jus mariti and right of administration of any husband or husbands they may have and that the same shall not be liable for the debts nor attachable by the creditors of such husband or husbands but the simple receipts and discharges of such female children without the consent of their husbands shall be a sufficient discharge and exoneration to my said Trustees for the same:
In the Seventh place until the division and apportionment of my means and estate as aftermentioned shall take place my said Trustees shall from time to time lay out and invest on good heritable or personal security such parts of my free moveable means and estate as shall be realized and can be conveniently so invested, to remain and accumulate at interest and the residue and remainder of my means and estate and such parts thereof as may be accumulated as aforesaid, my said Trustees shall divide and apportion in equal shares, amongst the children of my deceased brother James Stewart in manner and at the periods following namely: They shall first of all in computing the free residue and remainder of my means and estate Value my said estate and lands of Blackhouse including the Mansion House and other buildings thereon at the sum of Ten thousand pounds sterling to be imputed pro tanto of the share of my estate destined to James Stewart son of my said deceased brother, as aftermentioned: and on this valuation they shall adjust and ascertain in the interests of my brothers said children in the said free residue of my means and estate: and shall invest on good heritable or personal security for behoof of much of my said brothers children as are females (exclusive of the jus mariti and right of administration of any husband or husbands they may have) an equal and just share and proportion thereof, payable to her or them on her or their respectively attaining majority or being married (whichever of these events shall first happen) and failing the said female children then to their issue: and a like share they shall pay over to each of James and Daniel Stewart sons of my said brother on their respectively attaining the age of twenty two years complete: and failing them to their issue: Declaring that the share of shares of such of my said brothers children (in the said free residue) as may die without issue, before the arrivals of the said respective periods of payment, shall accresce and belong to the survivors or survivor of the said children and to the issue of such of the said children as may have died equally among them: it being my intention that the issue of deceasing children shall have right not only to the share or shares of their parents but also to such shares by accretion of the portions of their uncles and aunts who may have died without issue as their parents would have taken had they survived: Declaring that the foregoing provisions in favor of my said brothers children respectively shall vest in and be payable to them upon the arrival of the said periods of payment respectively and not sooner even though they should survive me and my said spouse: But I do hereby provide and declare that in settling with my said nephew James on his attaining the said age for his share of my means and estate my said Trustees shall dispone and convey my said estate and lands of Blackhouse to the said James Stewart and the heirs of his body whom failing to the said Daniel Stewart (on his also attaining the same age) and the heirs of his body, and that at the foresaid valuation of ten thousand pounds sterling to be imputed pro tanto of the said James Stewart’s share and eventually in case of the said James Stewarts dying without issue pro tanto of the said Daniel Stewart’s share of my means and estate: whom failing to the other children of my said deceased brother equally among them and their heirs: whom all failing to my own nearest heirs and assigns whomsoever: But should it happen that at the time of making the conveyance of the said estate and lands of Blackhouse my said spouse should have made her election to possess the said Mansion House garden and grounds and offices of Blackhouse, then and in that case my said Trustees shall allow the said James Stewart and his heirs foresaid (should he express a wish to that effect in writing to my said trustees within two years from my death) and failing him and them the said Daniel Stewart and his heirs foresaid (under the same condition by him) to possess until the death of my said spouse my said house and grounds at Seafield free of rent as a Surrogatum for the want of possession of my said Mansion House and lands of Blackhouse. Lastly upon the decease of my said spouse my said Trustees are hereby directed and empowered to sell and dispose of my foresaid house and grounds at Seafield and that either by public roup or private bargain as they shall judge most expedient and shall divide and apportion the proceeds thereof along with the principal sum laid out at interest for payment of the foresaid annuity should such mode of securing the said annuity have been adopted by my said Trustees among the whole children of my said deceased brother in the proportions at the periods and under the declarations particularly before expressed with respect to the division and apportionment of the residue of my means and estate before mentioned: and I hereby declare that my said Trustees shall have full power on all necessary occasions to bind me and my heirs and my said estate in absolute warrandice in favor of debtors or of purchasers of any part of my said estate: but which purchasers or debtors shall have no concern with the application of any sums paid by them, or with any of the conditions or provisions herein contained: And further I the said William Stewart do hereby give full power to my said Trustees or their quorum or to the survivors or survivor of them to add and assume such other person or persons one or more as they shall think fit to be Trustees alongst with them: and which Trustees so to be named and assumed shall possess the same powers and privileges which are hereby conferred on the Trustees above named: and for carrying these presents more effectually into execution I hereby nominate and appoint my said Trustees and the acceptors or acceptor survivors or survivor of them and their quorum foresaid to be my sole and only executors and intromitters with my goods and gear for the uses and purposes foresaid with power to them to give up Inventories of my estate and confirm my testament if needful: and I also nominate and appoint them to be tutors and curators to such of the said children of my said deceased brother as may be minors at the time of my death: giving and committing to them hereby the whole powers competent to tutors and curators by law, for managing the estate of minors: And I hereby declare that my said Trustees and executors whether acting as such or in the capacity of tutors or curators shall not be bound to do diligence nor be liable in solidum or for omissions nor for any factor they may appoint but each for his own actual intromissions only neither shall they be liable for the solvency of any parties in whose hands they may invest my funds; provided they be habite and repute responsible nor shall they be responsible for the sufficiency of the landed securities: and I hereby reserve to myself not only my own liferent use and enjoyment of the whole subjects herein before conveyed but also full power and liberty at any time of my life and even on deathbed by a writing under my hand to alter innovate or revoke these presents in whole or in part as I may see fit or to sell or burden the foresaid subjects as I may see proper: and I dispense with the delivery hereof and declare these presents in so far as they may be unaltered by me though found lying in my repositories or in the hands of a third party for my behoof undelivered at the time of my death to have the full force and effect of or delivered evident, any law or practice to the contrary notwithstanding: And I hereby revoke and recall all former settlements made by me of my means and estate: And I consent to the Registration hereof in the Books of Council and Session or others competent, therein to remain for preservation: and thereto constitute George Monro Esquire Advocate Procurators: In witness whereof these presents consisting of this and the ten preceding pages of stamped paper all written by David Duncan Apprentice to Williamson and Glassford Writers in Greenock are (together with the marginal addition on page fourth hereof also written by the said David Duncan) subscribed by me at Greenock the thirteenth day of March one thousand eight hundred and forty three years before these witnesses David Glassford and George Williamson Junior both Writers in Greenock
(signed) Wm. Stewart, Dav. Glassford Witness, Geo. Williamson Junr Witness.
I William Stewart Esquire of Blackhouse above named and designed with the special advice and consent of Mrs. Eliza Paton or Stewart my spouse also named in the foregoing deed of Settlement in virtue of the powers or revocation and alteration within reserved to me do hereby alter restrict and revoke the provisions and terms of the before written trust disposition and settlement in manner following:
First, In respect that my friend Mr. Robert Dow Ker has removed his residence to a distance from Greenock so as to render the execution of the trust inconvenient for him I do hereby revoke and recall his nomination and appointment to be one of my trustees and executors and in his room and place I nominate and appoint Mr. James Johnston Merchant Greenock to be a trustee and executor with all the powers of the others.
Second, In respect I have of equal date herewith executed a liferent conveyance of my estate and lands of Blackhouse in favor of my said spouse to take immediate effect the net yearly rents and value of which I estimate at Three hundred pounds sterling at the least therefore I do hereby restrict the within yearly jointure of one thousand pounds made payable to my spouse after my decease to the sum of seven hundred pounds sterling which I hereby appoint and direct my Trustees to pay unto my said spouse at the terms and in the manner provided respecting the said jointure of one thousand pounds but declaring that should my said spouse at any time hereafter renounce the said liferent conveyance in her favor or should the same be annulled or rendered inoperative on any ground or plea whatsoever then and in such event her said jointure of one thousand pounds shall revive and be in full force as if the said Conveyance of this present codicil had not been executed.
Third- In consideration that my said spouse has agreed to accept of the whole provision within made for her and her heirs as restricted by this present codicil with the liferent conveyance to Seafield within mentioned and the said liferent conveyance to Blackhouse as in full satisfaction and payment to her of all terce of lands jus relictae that is widows right, half or third of moveables, former provisions by me in her favor or any other right legal or conventional which my said spouse in the event of her surviving me can claim in and through my death or which her executors or next of kin in the event of her predeceasing me can claim from me or my heirs or representatives: Therefore I the said William Stewart do hereby provide and declare that the provisions of the within deed of Settlement so far as conceived in favor of my said Spouse or her heirs shall not be restrictable or revocable by me or in any way subject to alteration without her consent in writing-
Fourth. And I the said Mrs. Eliza Paton or Stewart with advice and consent of my said spouse and husband do hereby on the other hand accept of the provisions mentioned in the foregoing trust Deed made for me namely the sum of Five thousand pounds sterling and that over and above any sums of money derived by my said husband from my relations together with the said carriage horses and household furniture and the within mentioned yearly jointure of one thousand pounds (hereby restricted to seven hundred pounds as aforesaid) with my liferent of Seafield and of the estate of Blackhouse and in short the whole other provisions mentioned in the foregoing deed whether herein particularized or not conceived in favor of myself upon my survivance of my husband or in favor of my heirs and next of kin upon my predecease of him: and that in full payment and satisfaction to me of all terce of lands, jus relictae (that is widows right) half or third of moveables, former provisions by my husband in my favor or any other right legal or conventional which I in the event of my surviving my said husband can claim in and through his death, or which my executors or next of kin in the event of my predeceasing him may or can claim from him or his heirs or representatives and all farther claim I do hereby discharge and in token of my said acceptance and of my Homologation of the said Trust Deed I do subscribe this codicil.
Lastly I the said William Stewart do hereby ratify and confirm the foregoing Trust disposition and Settlement in its whole other clauses and contents and we the said Spouses consent to the registration hereof alongst with and in terms of the Clause of Registration in the said trust deed: IN Witness whereof this codicil written partly on the eleventh being the last page of the said Trust Deed itself and partly on the page of stamped paper following that on which the latter part of the said Trust Deed is written and partly on this page of stamped paper and thus consisting of the above and a preceding page and part of a page preceding that all so written on stamped paper by David Glassford Writer in Greenock is subscribed at the Mansion House of Saint Fillans near Large, Ayrshire, the eleventh day of January Eighteen hundred and forty eight years Before these witnesses William Pennie our Gardener at Saint Fillans and John Paton our footman or servant
(Signed) Wm. Stewart, Eliza Stewart, William Pennie Witness, John Paton, Witness.
I William Stewart within designed do hereby revoke the legacies to the children of Archibald Laird fenar in Greenock and their issue provided under the sixth head of the foregoing Settlement and Declare that the sums there directed to be paid to them shall form part of the general residue of my estate Farther in respect that since the liferent conveyance of the lands and estate of Blackhouse was executed by me in favor of my said Spouse I have acquired from the Earl of Glasgow a part of the lands of Auchengarth extending to about ten acres and lying adjacent to Blackhouse and which now forms part of the estate of Blackhouse it is my wish that my said spouse should also enjoy the life rent of these additional lands and I direct my said trustees to allow her to possess and enjoy the same during all the days and years of her life and if they see fit or if required by her to execute and deliver a Disposition thereof to her in liferent for her liferent use allenarly. And in regard to the sum of Five thousand pounds which my said Trustees are directed under the third head of the foregoing Settlement to pay over to my said spouse or to her next of kin or assignees the same shall vest at my decease and be payable at the first term of Whitsunday or Martinmas after my decease with interest thereafter till paid But I do hereby declare that if my said spouse shall predecease me without assigning the said sum or leaving any writing directing to whom it is to be paid and if the Reverend Doctor Robert Paton Minister of Saint Davids Glasgow her only surviving brother shall also predecease me without issue then the said sum of five thousand pounds shall not be payable by my said trustees but shall form part of the general residue of my estate:
And in regard to the disposal of the residue of my means and estate as directed under the seventh head of the foregoing Settlement In respect that all the children of my said deceased brother James Stewart have now attained the ages at which their shares of the residue are directed to be paid or conveyed I hereby direct that their shares shall vest as at the date of my decease and that the division and allocation thereof shall be made as soon as can conveniently be accomplished but subject always to the liferent of Seafield in favor of my said spouse and without prejudice to my said Trustees remaining a sum to meet her annuity in terms of the option given to them by the foregoing Settlement And it shall not be necessary for my said Trustees retaining a sum to meet her annuity in terms of the option given to them by the foregoing Settlement And it shall not be necessary for my said Trustees to invest the shares of the daughters before paying over the same to them: And as to the share of the said James Stewart I hereby direct that the said lands of Auchengarth lately purchased by me shall be conveyed to him and failing him without issue to the said Daniel Shaw Stewart along with and as part of my said lands and estate of Blackhouse and to be included in the said valuation of ten thousand pounds And as I consider that this sum is less than half the value of the said lands and estate the conveyance thereof to the said James Stewart and failing him without issue to the said Daniel Shaw Stewart shall be under burden of the liferent of my said spouse in the event of her surviving me as aforesaid:
And I also direct my said trustees to make payment of such farther legacies or bequests as I shall appoint to be paid by any writing under my hand and in all other respects I do hereby confirm the foregoing Settlement and codicil and consent to the registration hereof along therewith: In witness whereof these presents written by Charles Neaves Cowper Clerk to Messieurs Patrick McEwen and Carment Writers to the Signet are subscribed by me at Edinburgh upon the fifth day of February eighteen hundred and fifty-seven before these witnesses James McEwen Writer to the Signet and John Carment Solicitor Supreme Courts
(Signed) Wm. Stewart, Jas. McEwen Witness, J. Carment, witness.
D. M. Browning