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A Collection of Newfoundland Wills
(J)
James Johnstone

 

Will of James Johnstone
from Newfoundland will books volume 6 pages 352-358 probate year 1897

Last Will and Testament of
James Johnstone of Edinburgh Scotland
Gentleman deceased

      I James Johnstone sometime of Larchhill near Moffat now residing at Number eight Merchinstone Park Edinburgh being desirous to regulate the management and distribution of my means and estate after my decease do hereby give grant assign and dispose to and in favor of my son William Johnstone my daughters Jemina Alexander Johnstone, Annie Stuart Johnstone and Alison Johnstone All residing with me at number eight Merchiston Park aforesaid Robert Salmond Esquire Number seven Saint Margarets Road Edinburgh and Robert Russell Simpson writer to the Signet Edinburgh and to such other person or persons as I shall hereafter name or as shall be assumed to act under the trust hereby created and to the acceptors or acceptor Survivors and last Survivor or the persons hereby named and to be named or assigned as aforesaid as Trustees for executing the Trust hereby created (the said Trustees named and to be named or assumed as aforesaid and their foresaids being throughout these presents denominated “my Trustees”) And to the assignees of my Trustees heritably and irredeemably all and Sundry laws and other heritable Estate and all moveable and personal Estate which shall belong to me at the time of my death and wherever situated with the whole vouchers and instructions of my said moveable and personal Estate and the writs and evidents of my said heritable estate but excepting always from the general conveyance above written the portions of the Estate of my late sister Miss Ann Johnstone over which I have a power of apportionment which I have exercised or am about to exercise by a separate deed of apportionment and I nominate and appoint my Trustees to be my Sole Executors or Executor Declaring that a majority of said Executors while more than two are alive and acting shall be a quorum but declaring always that these presents are granted in trust only for the ends uses and purposes following namely.

First I direct my Trustees to make payment of all my just and lawful debts deathbed and funeral expenses the expenses of executing this trust and any legacies or bequests I may make by any writing under my hand.

Second. I direct and appoint my Trustees to implement the provisions in favor of my wife Mrs Elizabeth Alexander or Johnstone contained in the contract of marriage between her and me dated fourth and registered in the Books of Council and Session the twenty second day of July Eighteen hundred and fifty and for that purpose to make payment to my said wife if she shall survive me of a full annual annuity of one hundred and fifty pounds or restricted annuity of seventy five pounds during her lifetime as thereby provided and also to pay my said wife the sum of eighty pounds sterling as an allowance for mournings (being the twenty pounds provided for that purpose in my said contract of marriage and sixty pounds in addition) And further I direct my Trustees to allow my said use the liferent use of the whole household furniture including silver plate china pictures and all other household effects which shall belong to me at the time of my death Further I direct my Trustees to allow my said wife in the event of her surviving me the free liferent use and possession during all the days of her widowhood of my dwelling house number eight Merchiston Park aforesaid with ?rtenento thereof to which she has right in virtue of the disposition of said house in favor of me and her And I provided and declare that if my said wife shall enter into a second marriage then and in that case her liferent of the said household furniture and others and also of the said dwelling house and others shall from and after said second marriage cease and determine and her right thereto become ipso facto void and null in the same manner as if she were naturally dead which dwelling house and others and liferent right created in favor of my said wife under the title thereto have been and are hereby substituted as a surrogating for the house and lands of Larch hill and liferent right therein constituted in her favor under the foresaid contract of marriage. And I declare that the provisions in favor of my said wife herein contained shall be in full satisfaction to her of all her claims under said contract of marriage or otherwise against me or my heirs Executors and Successors in any manner of way

Third. I direct my Trustees upon my decease to deliver to my said son William Johnstone my philosophical and Scientific books and philosophical instruments which I hereby bequeath to him and to deliver to my said three daughters equally among them than and share alike or to the survivors or survivor of them than and share alike or to the Survivors or Survivor of them my theological historical and all other books which I hereby bequeath to them and the said books shall not be subject to the liferent of my said wife And in the event of any difference arising between my daughters as to the division of the books bequeathed to them I hereby direct that the division shall be made by an Arbiter to be appointed by my Trustees and the Arbiter so appointed shall divide the books into three lots or into two lots in the event of only two of my daughters surviving me And I provide that if all my daughters survive me, my daughter Jemina shall have the first choice of the lots and my daughter Annie the second choice and if either of them shall predecease me the other shall have the fist choice.

Fourth I direct and appoint my Trustees to hold the whole residue and remainder of my means and Estate heritable and moveable hereby conveyed as one capital fund which is hereafter called “the Said Capital fund” and which shall not be divided or distributed during the lifetime of any of my children but shall be held by my Trustees for the liferent use and enjoyment of my said four children or such of them as shall survive me and the survivors and last survivor of such of my said children as shall survive me as an alimentary provision for them and the survivors and Survivor of them and I direct my Trustees to divide the full annual interest or produce of the said capital fund between my said four children equally share and share alike and the Survivors of them and or pay the interest or produce to the last survivor of my said children and I hereby provide and declare that the said interest or produce payable to my said children and the survivors or the last survivor of them shall not be assignable by my said children or any of them and shall not be subject to the debts or deeds of them or any of them or to the diligence of the creditors of them or any of them but the said capital fund and the interest or produce thereof shall be strictly alimentary And further provide and declare that although any of my children shall predecease me leaving lawful issue the said capital fund shall be held by my Trustees in the amount herein provided for behoof only of such of my children as shall survive me and the said annual interest or produce of the said capital fund shall accrue only to the survivor of such of my said children as shall survive me notwithstanding that any of my said children who may survive me and thereafter die leave lawful issue alive at the time of his or her death and I further provide and declare that in the event of only two of my children surviving me or if more than two survive me upon their being reduced to two it shall be in the power of such two surviving children or the last survivor of them to dispose of the said capital fund by will or other testamentary writing to take effect upon the death of the last survivor of my said children and in the event of the said power being exercised by my two last surviving children the same may be exercised either by a joint deed or by separate deeds to the extent of one half of the said capital fund by each but such deeds shall not take effect until the death of the last survivor of my said children and further I expressly provide and declare that none of my said children shall take a vested interest in the said capital fund and that in the event of any of my said children endeavoring to set aside this settlement or seeking to disturb the provision hereby made for keeping the said capital fund intact as aforesaid any such child or children shall forfeit all interest in my said means and to take which shall thereupon be held for behoof and benefit of the children or child desirous of preserving the said capital fund intact and in the event of my said children or the survivors of them agreeing or conspiring directly or indirectly to divide or distribute the said capital fund among themselves or in any other way and in conformity with these presents I hereby direct that the said capital fund shall pass and belong to the managers or Trustees for the time being of the Royal Infirmary of the City of Edinburgh for behoof thereof and in said event I authorise and empower said managers or Trustees of the said Royal Infirmary to sue my said children or any of them for repayment of the said capital fund or any part thereof which my said children or any of them may have obtained possession of or appropriated for his or her use or behoof

Lastly In the event of my said last two surviving children or either of them or of the last survivor of them failing to exercise the power above conferred on said two last surviving children and survivor of them the said capital fund shall accrue to their children equally per stirpes if they shall both leave children or to the children of each of them as shall leave children and failing children of them or either of them then to the issue equally per Stirpes of each of my other children as may have died leaving issue whom all failing to my own next of kin and I hereby provide and declare that the provisions herein combined in favor of my said children are and shall be accepted by them as in full satisfaction to them of all provisions in their favor contained in the said contract of marriage between me and my said wife dated and recorded as aforesaid And also in full satisfaction to them of all legitimate claims part of year portion natural executory and every other claim or demand whatsoever competent to them by law by or through my decease and I direct my Trustees to pay to the said Robert Salmond the sum of three pounds three shillings per annum so long as he shall act as a Trustee and Executor under these presents And I declare that notwithstanding such annual payment the said Robert Salmond shall bade all the powers competent by law to gratuitous Trustees and Specially power to resign the office of Trustee and Executor at any time he may desire to do so and upon the death or resignation of the said Robert Salmond I direct my remaining Trustees to assume another Trustee with the like power to act along with them and such assumed Trustee shall receive the sum of Three pounds three Shillings per annum so long as he shall act as Trustee it being my express desire that there shall always be at least one neutral Trustee to act along with the members of my family and the administration and management of my estate and I further provide and declare that my Trustees and Executors shall be entitled to the fullest powers and exemptions usually conferred on gratuitous Trustees according to the most liberal interpretation and particularly and without prejudice to the said generality I authorise and empower them to call sue for uplift receive assign settle and discharge the whole debts and effects due and belonging to me as also to sell realize and convert into money the whole of my estate effects and particularly to sell and dispose of my heritable estate by public coup or private bargain with or without advertisement and for such price or other consideration as my Trustees may think fit and at such time or times as they shall think proper as also to submit to arbitration or settle by the advise of counsel all disputed claims competent to or against the said Trust Estate and effects or among the parties interested therein to compound and take part for the whole of any disputed debts or claims to lend out the whole or any part of the Trusts funds and estate on heritable or real security or on personal security or on the debentures of public incorporate or other publicly responsible companies or on the security of the Government funds or of shares in chartered or incorporated companies in Great Britain or to invest the same in the purchase of heritable property whether free or leasehold free duties ground annuals or other heritages or of the guaranteed or preference or debenture stock or shares of railway or other incorporated companies in which the liability of each share holder is limited to the value of the stock held by himself or to retain the same or any part thereof in Bank in Scotland at the rate of interest allowed on ordinary current accounts on deposit receipts and to place the same on deposit receipt with any Indian or Colonial Bank having an office in Great Britain as also to continue any investments which may have been made by me at the time of my decease and from time to time to call up after vary renew and convey the securities investments deposits and others as may be necessary or as my Trustees may deem it expedient to appoint any one of their own number or any other proper person or persons to be Factor or Factors or law agent or law agents under them for the management of the Trust Estate with or without security and to allow such Factors or Factor suitable remuneration for their trouble and such law agents the usual professional fees but for the intromission of such factors or law agents they shall not be responsible provided the party or parties so appointed were reputed solvent at the time and I provide and declare that my Trustees shall not be liable for the sufficiency of the securities on which they may lend out the trust funds or of the Banks in which the same may be deposited nor shall they be responsible that the properties fees duties ground annuals stocks horses and others which they may purchase with the Trust funds or any part thereof shall realize the price or prices at which the same were purchased nor shall my Trustees be liable for any loss or depreciation or investments unless occasioned by their wilful neglect and each of my Trustees shall be liable to account only for the funds actually received by himself or herself and not for any funds which he or she may have authorised a co Trustee Factor or agent to receive and any Trustee who shall pay over to a Co Trustee factor or agent or shall do so consent in any act enabling such co Trustee Factor or agent to receive any moneys for the general purposes of the Trust or for any definite purpose authorised by this settlement shall not be responsible for any loss resulting from his or her failure to see to the due application of the funds entrusted to such co Trustee Factor or agent and none of my Trustees shall be responsible for the failure to recover any debt or fund the realization of which had been by him or her entrusted to and undertaken by a co Trustee Factor or agent to the Trust and it is hereby expressly provided and declared that debtors or purchasers or other parties with whom my Trustees and Executors shall transact shall have as concern with or right to interfere or inquire into the application of any sums or sum falling to be paid to my Trustees and Executors and the receipts and discharges or other writings of my Trustees shall be a sufficient exoneration for the same and I hereby reserve my liferent use of the whole means and estate hereby conveyed and full power at any time of my life to revoke burden qualify explain or in any way to alter these presents at pleasure and I revoke all previous testamentary writings executed by me and declare these presents to be my last will and Testament and I dispense with the delivery hereof and consent to the registration hereof for preservation
In witness whereof these presents written on this and the six preceding pages by William Mitchell McLaven apprentice to Messrs R R Simpson & Lawson Law agents and conveyancers in Edinburgh are inscribed by me at Edinburgh upon the ninth day of March in the year eighteen hundred and ninety one before these witnesses Henry Munro clerk to the said R R Simpson & Lawson and John James Steadman apprentice to the said Robert Russell Simpson (Signed) James Johnstone.    Henry Munro witness J. J. Steadman witness.

(Listed in the margin next to this will the following)
Fiat
J G. Little
J.
Adm. Cta
granted to
the Right Rev.
LG Whiteway
Dated
Dec 21:1897
Estate
sworn under
$9000.00

 

 

Page Contributed by Sheila Tiberio, Judy Benson & Ivy F. Benoit

Page Revised by Ivy F. Benoit (Wednesday February 20, 2013)

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