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A Collection of Newfoundland Wills
(S)
John Scott

Disclaimer: The wills for volumes 1 and 2 are not made from the original will books, but rather from a set of books written up from the originals about 100 years later. The 1846 hand written will book that we are putting up along with the wills from the volume 1 will book, is not the original will book. It was made, probably within a decade of the death of the testators, but it is not an exact replication from the original will book.

 

Will of John Scott
from Newfoundland will books volume 1 pages 524 to 532 probate year 1847.

In re
     John Scott       deceased.

I John Scott Esquire late merchant in St. John's Newfoundland now residing at Number twenty two Nicolson's Street Edinburgh for the love favor and affection which I have and bear towards my family and friends afternamed and for settling the Succession to my heritable and moveable estate in the event of my decease and preventing all questions and disputes concerning the same do by these presence give grant assign and dispose to and in favor of Elizabeth Scott my well beloved wife Catherine McHutchen my only child and wife of William McHutchen Agent for the European Life Assurance Office London residing at Number Sixty Nicholson's Street, Edinburgh the said William McHutchen, Doctor John Barthwick Gilchrist Professor of Hindostanee for the East India Company and residing in London, James L'Amy Esquire Advocate, John Barthwick Younger of Cookston Esquire, James Macbriare Esquire late of St. John's Newfoundland now merchant in Edinburgh, John Joseph Macbriare son of the said James Macbriare and Thomas Henderson Junior Merchant Royal Exchange Buildings Edinburgh, and to the survivors or survivor of them, or of such of them as shall accept hereof and to the heirs or heir at law of the said last survivor of such acceptors or to such other person or persons as they or the survivors of them shall assume as Trustees in virtue of the powers after granted But in trust always for the uses ends and purposes after mentioned, Declaring always that in the event of my said trustees before named being (by decease, non-acceptance, non-residence in Great Britain or Ireland or otherwise) at any time reduced to fewer in number than three then and as often as the said Reduction shall take place while the purposes of this Trust are not completed the said remaining Trustees or Trustee are and is hereby authorised and required by a writing under their or his or her hand to assure such person or persons as Trustee or Trustees as they or he or she may think proper recommending to them in case of assuming additional Trustees to consider whether my grandchild John McHutchen should not be named one of them the Trustee or Trustees so to be assumed having the same power of disposal management and assumption in all respects as those specially named in these presents, declaring further that the majority if the said Trustees above named or to be so assumed acting for the time and resident in Great Britain or Ireland shall be a quorum and have the right to exercise all the powers hereby conferred upon the whole. All and sundry Lands Tenements Houses annual rents and other Heritages presently belonging or which shall happen to pertain and belong to me at the time of my death wherever situated whether in Great Britain, Ireland, America or elsewhere with the Rents and Duties thereof and whole writs evidents Title Deeds and Securities of and concerning the same together also with the Procuratories of Resignation Precepts of Sasine Clauses of Warrandice and other clauses and obligations therein contained and all that hath followed or may be competent to follow thereupon together with all the right title in ????st claim of right property or possession as well petitory as possessory which I my predecessors or authors had have or anyways may have claim or pretend to all or any of the subjects generally before disponed or to any part or portion thereof in time coming. Moreover I hereby assign and dispose to my said Trustees and their aforesaid all and sundry debts heritable and moveable shares of Bank-Stock Government Stock, Gas Canal Shipping or other Companies or concerns and sums of money both principal sums and interest due thereon and penalties stipulated in case of not punctual payment and all gold and silver coined and uncoined Bank notes and in general all goods gear and moveable effects of whatever nature or denomination Heirship moveables included that happen to pertain and belong or to be due and owing to me at the time of my decease or any manner of way together with all bonds obligations Bills Promissory notes decrees and other grounds and instructions of debt rights and claims whatsoever which shall in any ways be vested in me or to which I shall have right at that period dispensing with the generality hereof and declaring the same to be as valid and effectual a conveyance of the whole premises to the said trustees as if every particular of my real and personal or heritable and moveable estate had been herein enumerated and specially disponed But excepting always from this Disposition my gold watch with the appendages thereto belonging which I hereby legate and bequeath to my grandson John McHutchen but which however shall be retained in the custody of my said wife until she be of the opinion that he is able to take care of it. But providing always as it is hereby expressly provided and declared that these presents are made and granted to and to be accepted of and by the said Trustees with the powers for the uses ends and purposes and under the conditions provisions and declarations herein after mentioned, vizt with power to the said Trustees or such of them as shall accept and their aforesaid to uplift and receive the whole heritable and moveable debts and sums of money then resting and ??ing to me and to recover and to intromitt with my whole moveable estate and effects before disponed to grant Receipts Discharges Renunciations or Conveyances of the said debts moveable estate and effects and in general to do everything in relation thereunto which I might have done in my own lifetime as also to establish in their persons legal titles to the several lands and heritages generally above disponed with power to my said Trustees in the events after mentioned having taken place to sell and dispose of the same or any part thereof either by private sale or by public roup as to them shall seem most expedient and to uplift and receive the rents and duties thereof remove and input tenents while unsold and to grant dispositions and all other writts necessary in favor of the purchasers binding my heirs in absolute Warrandice of the subjects sold declaring hereby that the purchasers of my said lands and heritages or any part thereof shall have no concern with the application of the price or prices of their respective purchasers but that a receipt and acquittance for the same by the said Trustees or Quorum or survivor aforesaid shall be to the said purchasers full and sufficient expaceration with power also to the said Trustees or theirs foresaid to appoint factors or cashiers under them from time to time for uplifting and discharging the rents and duties of my said lands, and heritages the prices of the same when sold and the debts due to me with the interests thereof and for managing my whole heritable and movable estate hereby disponed and to allow reasonable salaries to such factors or cashiers and in general with power to the said Trustees or theirs aforesaid to do all and everything requisite and necessary for the execution of the trust hereby granted but provided always as is is hereby expressly provided and declared that the said Trustees shall be holden and obliged to account for and apply their whole intromissions with the trust subjects hereby disponed and the rents issues and profits arising from the same in manner following, vizt

In the first place to and for payment of all the just and lawful debts that shall be due and owing by me at the time of my death including my funeral charges and also Mournings (as shall be fixed by my son in law if he survive me whom failing by the said John Joseph Macbraire Esquire) to my wife daughter son in law and families and also the household expense of maintaining my said wife and servants to the first term of Whitsunday or Martinmas after my decease

Secondly to and for payment of the expence of completing the Trustees own titles to the several subjects before disponed and of executing this present Trust as the same shall be ascertained by an account under their hands or the Account Books of the Disbursers

Thirdly declaring hereby that my said wife if she survive me shall have right to occupy or in her option to let the dwelling house and pertinents at Number Twenty two Nicolson's Street presently occupied by me and to apply the rents for her own proper use and behoof as also to use and enjoy the whole household furniture therein (upon inventory to be taken thereof) all the days of her lifetime after which the said household furniture and dwelling house shall be made available for the other purposes of this Trust

Fourthly my said trustees shall apply the net annual produce or income arising from my whole real and personal or heritable and moveable estate (after deduction of taxes and all the necessary charges that shall be incurred in carrying this present Trust into execution) as follows, vizt Besides the liferent of the House and Furniture in Nicolson's Street before conveyed to my said wife she shall be entitled to and there shall be paid to her a lifetime annuity of two hundred pounds sterling payable half yearly and commencing in advance at the first term of Whitsunday or Martinmas after my decease with a fifth part more of penalty in case of failure and the legal interest of the said annuity from and after the respective terms of payment thereof during the not-payment Declaring always that the annuity and other provisions above written settled upon and granted to the said Elizabeth Scott my wife are and shall be in full satisfaction to her of all terms of lands or heritages third or half of moveables and everything else which she can claim or demand out of my heritable or moveable estate in the event of her surviving me either by law or by any contract of Marriage executed before or since our marriage or which her executors or nearest in kin can ask or demand out of my estate in the event of her predeceasing me. And declaring that the remainder of the said annual produce after payment of the said annuity provided to my wife shall be accounted for and paid over to the said Mrs. Catherine McHutchen my only daughter and that also half yearly at the two terms before mentioned commencing at the first term that shall happen after my decease in so far as any free produce of my said trust estate shall then remain and so on half yearly thereafter during all the days of her life Declaring and specially stipulating that the annual provision hereby provided to the said Catherine McHutchen my daughter shall be strictly and entirely alimentary to the said Catherine McHutchen (and her children whom she shall be bound to maintain and educate) and not be affectable while in the hands of my said Trustees by her own debts or deeds or the debts or deeds or any part of diligence upon the debts or deeds of her present or any future husband whose jus mariti courtesy and all other rights conferred by law or conferrable by agreement are hereby expressly secluded and debarred Declaring that her own simple receipt or acknowledgment shall be sufficient to my said Trustees for the several payments of the annual provision to the said Catherine McHutchen which at each term shall consist of what remains in their hands of the said annual produce arising from arrears or otherwise After satisfying the prior and preferable purposes of this Trust providing always that if the said Catherine McHutchen my daughter shall marry a second husband while any of her children of the present marriage shall be under age it shall be in the power of the said Trustees (other than the said Catherine McHutchen) if they shall deem it necessary so to do to make provision out of the Trust funds for the separate and suitable maintenance and education of such children of the present marriage as shall be pupils or minors until they arrive at the age of majority respectively and for that purpose to encroach on the liferent provision of the said Catherine McHutchen but so as not to reduce it even in the event of a second marriage under the circumstances just mentioned below two hundred pounds per annum ??? as also to make such advane as for the outfit of her children by the present marriage and for their support in life until the period of division arrive as they shall think fit out of the trust funds provisions as aforesaid that the liferent provision of their mother shall not be reduced below two hundred pounds sterling and in the event of the said Catherine McHutchen predeceasing her present husband then and in that event my said Trustees shall pay out of the said free annual proceeds a liferent annuity of Fifty pounds sterling to the said William McHutchen and shall apply the remainder of the said annual proceeds to the education and maintenance of his children procreated or to be procreated of the marriage between him and my said daughter suitably and notable until the youngest of them shall attain the age of twenty one years or marry with the consent of the said Trustees after which and after the decease of my said wife the Trust funds shall be divided among my grandchildren in manner and under the explanations after mentioned Declaring specially that the liferent annuities hereby made payable shall be provided for preferably to the other purposes of the Trust and in the following order, vizt

In the first place the annuity to my wife, Secondly the annuity or provisions to my daughter and thirdly the annuity to my son in law and after the two first annuities shall have determined by the decease of my said wife and daughter and after the youngest child of my said daughter either by her present or any future husband shall have attained the age of twenty one years complete or married with the consent of my said Trustees as aforesaid the Trustees acting for the time shall when all and the last of these events has happened be bound to sell and dispose of my whole heritable and moveable property in Scotland and Newfoundland or whereever else the same may be situated (but which in so far as respects the Heritable property they are not to sell till then) with all reasonable despatch and when my sd heritable property has been so realized in money and my whole moveable estate recovered and called in which my said Trustees shall be bound to do without unnecessary delay after the last of the said events has occurred they shall be bound to divide and pay the same in manner following but under the conditions and with the limitations underwritten, vizt, If the said William McHutchen shall be then alive they shall in the first place purchase for him or in his option pay him the purchase money (according to the most approved annuity Tables at the time) of an annuity of fifty pounds sterling on his own life and the surplus of the proceeds of my whole estate heritable and moveable (after deducting the value of the said annuity and the other expences that may be incurred in carrying the purposes of this Trust into execution) shall then be divided and paid rateably(?) and equally share and share alike to and among the whole children of the said Catherine Scott or McHutchen by her present or any future husband Declaring that if there shall only be one of my grandchildren alive at the time and no issue surviving or the body of any other grandchild than the residue of my whole estate shall be payable to the said surviving grandchild but if any grandchild shall have died before the period of division leaving issue of his or her body then the same that would have fallen to the predeceaser shall be paid to his or her issue equally among them share and share alike if more than one but declaring that the shares of those who shall have died before the event has occurred which makes the fund divisible without leaving issue shall form part of the fund of division among the survivors none of my said grandchildren's shares being assignable by the marriage or deed of the Parties previously to the period at which the last of the three events before mentioned shall happen Declaring farther that the occurrence of the last mentioned event shall not vest the right of those shares so absolutely in any one of my grandchildren as to preclude my Trustees or Trustee acting for the time from investing the same in whole or in part in a liferent if it shall appear to my said Trustees or Trustee to be for the interest of any one or more of my said grandchildren so to do or to make the same payable by installments at different periods which they are hereby also empowered to do Declaring hereby that the jus mariti courtesy and all other rights legal or conventional of any husband or husbands to whom my female grandchildren may be married are hereby expressly secluded and debarred but declaring that my said Trustees shall not have the power to withhold payment from my said grandchildren or their representatives but only to postpone the payment totally or partially during the life of my said grandchildren my said Trustees having power also on the other hand (if they see what they consider reasons for doing so) to advance any sum not exceeding one thousands pounds to any one or more of my said grandchildren for their outfit in life or upon marriage at any time after they shall have attained the age of fifteen and also in the event of the marriage of any of my said female grandchildren I hereby empower my said Trustees to advance a sum of money not exceeding one thousand pounds sterling for promoting the Professional or business views of such husband provided such advances do not encroach upon the liferent annuity hereinbefore provided to my said wife and son in law nor reduce the annual provision or income of my said daughter below two hundred pounds besides the use of the house (Number sixty) in Nicolson's Street or the rent thereof to which she shall be exclusively entitled during her lifetime and which she shall be at liberty to occupy or let & draw the rents thereof at her own option and which advances to my said grandchildren or their husbands shall be held as paid in part of the shares falling ultimately to the parties and be deducted therefrom but without bearing interest and if any of these grandchildren to whom advances shall have been shall die before the period of division and without issue the advances shall be considered as charges for which the Trustees shall be entitled to take credit from the Trust funds and failing my said daughter and her issue the remaining trust funds shall be paid over to my nearest of kin, and farther I recommend to my said Trustees never to have more than fifty pounds in their hands at a time without paying the same into a bank upon an account to be opened for this Trust as also whenever the moveable funds shall amount to Five hundred pounds of capital to lay out the same on good security recommending to them if a Factor be necessary to employ the said William McHutchen in that capacity provided there are no objections to that measure of the validity of which however they and not my son in law shall be the sole judge and they are harshly prohibited from lending any part of the Trust funds to the said William McHutchen and he is prohibited from retaining in his hands either as Trustee or Factor any portion of the funds at any time beyond the sum of one hundred pounds sterling Moreover I hereby legate and bequeath out of the proceeds of my moveable estate the sum of twenty pounds to the funds of the Catholic Church at Edinburgh for which the receipt of the Bishop for the time shall be a sufficient discharge which legacy shall be payable at the first term of Whitsunday or Martinmas after my decease and shall bear legal interest from the term of payment until paid

Farther I hereby nominate and appoint my said Trustees and their aforesaid to be Tutors and Curators to my said grandchildren and their lawful issue in so far as their interests under this Trust are concerned, Moreover I hereby nominate and appoint my said Trustees and their aforesaid to be my sole executors universal legators and only imtromitters with the debts due and moveable goods and effects belonging to me excluding and debarring all others from the office of executor with power to my said Trustees after my decease to uplift and receive the said debts and intromitt and with use and dispose upon the said moveable goods and effects and in general to do everything in relation thereunto that I might do myself in my own lifetime but always for the ends uses and purposes hereinbefore specified, and farther it is hereby provided and declared that the said Trustees and theirs aforesaid shall no ways be liable for any omissions or even for negligence in the execution of the trust hereby granted for the omissions neglects or solvency of their factors or Cashiers nor for the solvency of (of) any of the persons to whom they may lend out any of the Trust funds by virtue of these presents but that in all their tranactions they shall only be bound to act tanquar vomi viri and be accountable no farther than for their actual and personal intromissions with the subjects of their administrations and even as to such actual intromissions they shall noways be liable singuli in solidum nor for one another but only each of them for him or herself under which provisions conditions and declarations these presents are granted by me and to be accepted of and by the said Trustees and no otherways but reserving always to myself not only the full use and enjoyment of the whole subjects heritable and moveable hereinbefore disponed during all the days of my life but also full power and liberty at any time thereof to revoke alter or innovate these presents at pleasure but in so far as I shall not exercise this reserved power so far shall these presents be good and effectual although found in my Repositories or in the custody of any other person at the time of my death undelivered and I dispence with the delivery of the same any law or practice to the contrary notwithstanding and further I hereby revoke recall and annull all former dispositions and deeds of Settlement of my heritable or moveable estate and all legacies bequests and donations made executed and granted by me at any time before the date of these presents. And I consent to the registration hereof in the Books of Council and session or any other competent record therein to remain for preservation and that all legal execution necessary may pass and be directed against my heirs at law upon a decree to be interponed thereto in proper form and for these purposes I constitute the said Sir John Hey, Baronet Advocate my Procurator &c.

In witness whereof these presents consisting of this and the ten preceeding pages of paper (duly signed) with two marginal additions on the ninth page hereof the one consisting of the word "sixty" and the other consisting of twenty words beginning with "and" & ending with "option" and on which last mentioned page the words "twenty two" and "after her mother's death" are delete (the said marginal additions and this testing clause from the word "whereof" being written by William Ritchie, Solicitor of Supreme Court in Scotland and the rest of these presents being written by William Walker, Clerk to Mssrs. Campbell & Mack in Society, Edinburgh, for the said William Richie, are (with the said marginal additions) subscribed by me at Edinburgh the tenth day of January in the year one thousand eight hundred and twenty two before these witnesses the said William Richie and Thomas Henderson his clerk (signed) John Scott   Wm Richie, witness,    Tho. Henderson, witness.

Certified correct
D.M. Browning
Registrar


Will of John Scott from Newfoundland will book labeled, "REGISTRY OF WILLS 1846," pages 84 to 103 probate year 1847.

I John Scott Esquire late merchant in St. John's Newfoundland now residing at Number twenty two Nicolson's Street Edinburgh, for the love favor and affection which I have and bear towards my family and friends afternamed and for settling the succession to my heritable and moveable estate in the event of my decease and preventing all questions and disputes concerning the same do by these presents give grant assign and dispone to and in favor of Elizabeth Scott my well-beloved wife, Catherine McHutchen my only child and wife of William McHutchen Agent for the European Life Assurance Office London residing at Number Sixty Nicholson's Street, Edinburgh the said William McHutchen, Doctor John Barthwick Gilchrist Professor of Hindostanee for the East India Company and residing in London, James L'Amy Esquire Advocate, John Barthwick younger of Cookston Esq. James Macbriare Esquire late of St. John's Newfoundland now merchant in Edinburgh, John Joseph Macbriare son of the said James Macbriare and Thomas Henderson Junior Merchant Royal Exchange Buildings, Edinburgh, and to the survivors or survivor of them, or of such of them as shall accept hereof and to the heirs or heir at Law of the last survivor of such acceptors or to such other person or persons as they or the survivors of them shall assume as Trustees in virtue of the powers after granted But in trust always for the uses ends and purposes after mentioned. Declaring always that in the event of my said trustees before named being (by decease, non-acceptance, non-residence in Great Britain or Ireland or otherwise) at any time reduced to fewer in number than three then and as often as the said reduction shall take place while the purposes of this trust are not completed the said remaining Trustees or Trustee are and is hereby authorised and required by a writing under their or his or her hand to assume such person or persons as Trustee or Trustees as they or he or she may think proper recommending to them in case of assuming additional Trustees to consider whether my grandchild John McHutchen should not be named one of them the Trustee or Trustees so to be assumed having the same power of disposal management and assumption in all respects as those specially named in these presents.

Declaring further that the majority of the said Trustees above named or to be so assumed acting for the time and resident in Great Britain or Ireland shall be a quorum and have the right to exercise all the powers hereby conferred upon the whole - All and sundry lands tenements houses annual rents and other heritages presently belonging or which shall happen to pertain and belong to me at the time of my death wherever situated whether in Great Britain, Ireland, America or elsewhere with the rents and duties thereof and whole writs evidents title deeds and securities of and concerning the same together also with the Procuratories of Resignation Precepts of Sasine Clauses of warrantice and other clauses and obligations therein contained and all that hath followed or may be competent to follow thereupon together with all the right title interest claim of right property or possession as well petitory as possessory which I my predecessors or authors had have or anyways may have claim or pretend to all or any of the subjects generally before disponed or to any part or portion thereof in time coming. Moreover I hereby assign and dispone to my said Trustees and their aforesaid all and sundry debts heritable and moveable shares of Bankstock Government Stock, Gas Canal Shipping or other Companies or concerns and sums of money both principal sums and interest due thereon and penalties stipulated in case of not punctual payment And all gold and silver coined and uncoined Bank notes and in general all goods gear and moveable effects of whatsoever nature or denomination heirship moveables included that happen to pertain and belong or to be due and owing to me at the time of my decease in any manner of way together with all bonds obligations bills promissory notes decrees and other grounds and instructions of debt rights and claims whatsoever which shall in any ways be vested in me or to which I shall have right at that period dispensing with the generality hereof and declaring the same to be as valid and effectual a conveyance of the whole premises to the said trustees as if every particular of my real and personal or heritable and moveable estate had been herein enumerated and specially disponed but excepting always from this disposition my gold watch with the appendages thereto belonging which I hereby legate and bequeath to my grandson John McHutchen but which however shall be retained in the custody of my said wife until she be of the opinion that he is able to take care of it - But providing always as it is hereby expressly provided and declared that these presents are made and granted to and to be accepted of by the said Trustees with the powers for the uses ends and purposes and under the conditions provisions and declarations herein after mentioned, vizt with power to the said Trustees or such of them as shall accept and their aforesaid to uplift and receive the whole heritable and moveable debts and sums of money then resting and owing to me and to recover and to intromitt with my whole moveable estate and effects before disponed to grant Receipts Discharges Renunciations or Conveyances of the said debts moveable estate and effects and in general to do everything in relation thereunto which I might have done in my own lifetime as also to establish in their persons legal titles to the several lands and heritages generally above disponed with power to my said Trustees in the events after mentioned having taken place to sell and dispose of the same or any part thereof either by private sale or by public Roup as to them shall seem most expedient and to uplift and receive the rents and duties thereof remove and input tenents while unsold and to grant dispositions and all other writts necessary in favor of the purchasers binding my heirs in absolute Warrandice of the subjects sold declaring hereby that the purchasers of my said lands and heritages or any part thereof shall have no concern with the application of the price or prices of their respective purchasers but that a receipt and acquittance for the same by the said Trustees or Quorum or survivor aforesaid shall be to the said purchasers full and sufficient expaceration with power also to the said Trustees or theirs foresaid to appoint factors or cashiers under them from time to time for uplifting and discharging the rents and duties of my said lands, and heritages the prices of the same when sold and the debts due to me with the interests thereof and for managing my whole heritable and movable estate hereby disponed and to allow reasonable salaries to such factors or cashiers and in general with power to the said Trustees or theirs aforesaid to do all and everything requisite and necessary for the execution of the trust hereby granted but providing always as it is hereby expressly provided and declared that the said Trustees shall be holden and obliged to account for and apply their whole intromissions with the trust subjects hereby disponed and the rents issues and profits arising from the same in manner following, vizt.

In the first place to and for payment of all the just and lawful debts that shall be due and owing by me at the time of my death including my funeral charges and also mournings (as shall be fixed by my son-in-law if he survive me whom failing by the said John Joseph Macbraire Esquire) to my wife daughter son in law and families and also the household expense of maintaining my said wife and servants to the first term of Whitsunday or Martinmas after my decease

Secondly to and for payment of the expense of completing the Trustees own titles to the several subjects before disponed and of executing this present Trust as the same shall be ascertained by an account under their hands or the account books of the Disbursers

Thirdly declaring hereby that my said wife if she survive shall have right to occupy or in her option to let the dwelling house and pertinents at Number twenty two Nicolson's Street presently occupied by me and to apply the rents for her own proper use and behoof as also to use and enjoy the whole household furniture therein (upon inventory to be taken thereof) all the days of her lifetime after which the said household furniture and Dwelling House shall be made available for the other purposes of this Trust

Fourthly my said trustees shall apply the net annual produce or income arising from my whole real and personal or heritable and moveable estate (after deduction of taxes and all the necessary charges that shall be incurred in carrying this present Trust into execution) as follows, vizt besides the liferent of the house and furniture in Nicolson's Street before conveyed to my said wife she shall be entitled to and there shall be paid to her a liferent annuity of Two hundred pounds sterling payable half yearly and commencing in advance at the first term of Whitsunday or Martinmas after my decease with a fifth part more of penalty in case of failure and the legal interest of the said annuity from and after the respective terms of payment thereof during the not-payment - Declaring always that the annuity and other provisions above written settled upon and granted to the said Elizabeth Scott, my wife are and shall be in full satisfaction to her of all terce of lands or Heritages third or half of moveables and everything else which she can claim or demand out of, my heritable or moveable Estate in the event of her surviving me either by law or by any Contract of Marriage executed before or since our marriage or which her executors or nearest in kin can ask or demand out of my estate in the event of her predeceasing me. And declaring that the remainder of the said annual produce after payment of the said annuity provided to my wife shall be accounted for and paid over to the said Mrs. Catherine McHutchen my only daughter and that also half yearly at the two terms before mentioned commencing at the first term that shall happen after my decease in so far as any free produce of my said Trust Estate shall then remain and so on half yearly thereafter during all the days of her life Declaring and specially stipulating that the annual provision hereby provided to the Catherine McHutchen my daughter shall be strictly and entirely alimentary to the said Catherine McHutchen (and her children whom she shall be bound to maintain and educate) and not be affectable while in the hands of my said Trustees by her own debts or deeds or the debts or deeds or any sort of diligence upon the debts or deeds of her present or any future husband whose jusmariti courtesy and all other rights conferred by law or conferrable by agreement are hereby expressly secluded and debarred, declaring that her own simple receipt or acknowledgment shall be sufficient to my said Trustees for the several payments of the annual provision to the said Catherine McHutchen which at each term shall consist of what remains in their hands of the said annual produce arising from arrears or otherwise after satisfying the prior and preferable purposes of this Trust. Providing always that if the said Catherine McHutchen my only child shall marry a second husband while any of her children of the present marriage shall be under age it shall be in the power of the said Trustees (other than the said Catherine McHutchen) if they shall deem it necessary so to do to make provision out of the Trust funds for the separate and suitable maintenance and education of such children of the present marriage as shall be pupils or minors until they arrive at the age of majority respectively and for that purpose to encroach on the liferent provision of the said Catherine McHutchen but so as not to reduce it even in the event of a second marriage under the circumstances just mentioned below two hundred pounds per annum as also to make such advances as for the outfit of her children by the present marriage and for their support in life until the period of division arrive as they shall think fit out of the trust funds providing as aforesaid that the liferent provision of their mother shall not be reduced below two hundred pounds sterling And in the event of the said Catherine McHutchen predeceasing her present husband then and in that event my said Trustees shall pay out of the said free annual proceeds a liferent annuity of Fifty pounds sterling to the said William McHutchen and shall apply the remainder of the said annual proceeds to the education and maintenance of his children procreated or to be procreated of the marriage between him and my said daughter suitably and notably until the youngest of them shall attain the age of twenty one years single or marry with the consent of the said Trustees after which and after the decease of my said wife the Trust funds shall be divided among my Grandchildren in manner and under the explanations after mentioned Declaring specially that the liferent annuities hereby made payable shall be provided for preferably to the other purposes of the Trust and in the following order, vizt

In the first place the annuity to my wife - Secondly the annuity or provisions to my daughter and thirdly the annuity to my son in law and after the two first annuities shall have determined by the decease of my said wife and daughter and after the youngest child of my said daughter either by her present or any future husband shall have attained the age of twenty one years complete or married with the consent of my said Trustees as aforesaid the Trustees acting for the time shall when all and the last of these events has happened be bound to sell and dispose of my whole heritable and moveable property in Scotland and Newfoundland or wherever else the same may be situated (but which in so far as respects the Heritable property they are not to sell till then) with all reasonable despatch and when my said heritable property has been so realized in money and my whole moveable estate recovered and called in which my said Trustees shall be bound to do without unnecessary delay after the last of the said events has occurred they shall be bound to divide and pay the same in manner following but under the conditions and with the limitations underwritten, vizt, If the said William McHutchen shall be then alive they shall in the first place purchase for him or in his option pay him the on(?) purchase money (according to the most approved Annuity Tables at the time) of an annuity of fifty pounds sterling on his own life and the surplus of the proceeds of my whole estate heritable and moveable (after deducting the value of the said annuity and the other expences that may be incurred in carrying the purposes of this Trust into execution) shall then be divided and paid rateably(?) and equally share and share alike to and among the whole children of the said Catherine Scott or McHutchen by her present or any future husband declaring that if there shall only be one of my Grandchildren alive at the time and no issue surviving or the body of any other Grandchild then the residue of my whole estate shall be payable to the said surviving grandchild but if any grandchild shall have died before the period of division leaving issue of his or her body then the share that would have fallen to the predeceaser shall be paid to his or her issue equally among them share and share alike if more than one but declaring that the shares of those who shall have died before the event has occurred which makes the fund divisible without leaving issue shall form part of the fund of division among the survivors None of my said grandchildren's shares being assignable by the marriage or deed of the parties previously to the period at which the last of the three events before mentioned shall happen Declaring further that the occurrence of the last mentioned event shall not vest the right of those shares so absolutely in any one of my Grandchildren as to preclude my Trustees or Trustee acting for the time from investing the same in whole or in part in a liferent if it shall appear to my said Trustees or Trustee to be for the interest of any one or more of my said Grandchildren so to do or to make the same payable by installments at different periods which they are hereby also empowered to do Declaring hereby that the jus mariti courtesy and all other rights legal or conventional of any husband or husbands to whom my female grandchild or Grandchildren may be married are hereby expressly secluded and debarred but declaring that my said Trustees shall not have power to withhold payment from my said Grandchildren or their Representatives but only to postpone the payment totally or partially during the life of my said grandchildren my said Trustees having power also on the other hand (if they see what they consider good reasons for doing so) to advance any sum not exceeding one thousands pounds to any one or more of my said grandchildren for their outfit in life or upon marriage at any time after they shall have attained the age of fifteen and also in the event of the marriage of any of my said female grandchildren I hereby empower my said Trustees to advance a sum of money not exceeding one thousand pounds sterling for promoting the professional or business views of such husband provided such advances do not encroach upon the liferent annuity hereinbefore provided to my said wife and son in law nor reduce the annual provision or income of my said daughter below two hundred pounds besides the use of the house (Number sixty) in Nicolson's Street or the rent thereof to which she shall also be exclusively entitled during her own lifetime and which she shall be at liberty to occupy or let and draw the rents thereof at her own option and which advances to my said Grandchildren or their husbands shall be held as paid in part of the shares falling ultimately to the parties and be deducted therefrom but without bearing interest and if any of these grandchildren to whom advances shall have been shall made die before the period of division and without issue the advances shall be considered as charges for which the Trustees shall be entitled to take credit from the Trust funds and failing my said Daughter and her issue the remaining trust funds shall be paid over to my nearest of kin, and farther I recommend to my said Trustees never to have more than fifty pounds in their hands at a time without paying the same into a bank upon an account to be opened for this Trust as also whenever the moveable funds shall amount to Five hundred pounds of capital to lay out the same on good security recommending to them if a Factor be necessary to employ the said William McHutchen in that capacity provided they see no objection to that measure of the validity of which however they and not my son in law shall be sole Judges and they are harshly prohibited from lending any part of the Trust funds to the said William McHutchen and he is prohibited from retaining in his hands either as Trustee or Factor any portion of the funds at any time beyond the sum of one hundred pounds sterling

Moreover I hereby legate and bequeath out of the proceeds of my moveable estate the sum of twenty pounds to the funds of the Catholic Church at Edinburgh for which the receipt of the Bishop for the time shall be a sufficient discharge which legacy shall be payable at the first term of Whitsunday or Martinmas after my decease and shall bear legal interest from the time of payment until paid

Further I hereby nominate and appoint my said Trustees and their aforesaid to be Tutors and Curators to my said Grandchildren and their lawful issue in so far as their interests under this Trust are concerned, moreover I hereby nominate and appoint my said Trustees and their aforesaid to be my sole executors universal ligators and only Intromitters with the debts due and moveable goods and effects belonging to me excluding and debarring all others from the office of Executors with power to my said Trustees after my decease to uplift and receive the said debts and intromit and with use and dispose upon the said moveable goods and effects and in general to do everything in relation thereunto that I might do myself in my own lifetime but always for the ends uses and purposes herein before specified, and further it is hereby provided and declared that the said Trustees and theirs aforesaid shall no ways be liable for any omissions or even for negligence in the execution of the trust hereby granted nor for the omissions neglects or solvency of their factors or Cashiers nor for the solvency of (of) any of the persons to whom they may lend out any of the Trust funds by virtue of these presents but that in all their transactions they shall only be bound to act tanquar boni viri and be accountable no farther than for their actual and personal intromissions with the subjects of their administrations and even as to such actual intromissions they shall no ways be liable singuli in solidum nor for one another but only each of them for him or herself under which provisions conditions and declarations these presents are granted by me and to be accepted of by the said Trustees and no otherways But reserving always to myself not only the full use and enjoyment of the whole subjects heritable and moveable hereinbefore disponed during all the days of my life but also full power and liberty at any time thereof to revoke alter or innovate these presents at pleasure but in as far as I shall not exercise this reserved power so far shall these presents be good and effectual although found in my Repositories or in the custody of any other person at the time of my death undelivered and I dispence with the delivery of the same any Law or practice to the contrary notwithstanding and further I hereby revoke recall and annul all former dispositions and deeds of Settlement of my Heritable or moveable estate and all Legacies Bequests and Donations made executed and granted by me at any time before the date of these presents:
And I consent to the registration hereof in the Books of Council and session or any other competent record therein to remain for preservation and that all legal execution necessary may pass and be directed against my heirs at law upon a decree to be interponed thereto in proper form and for these purposes I constitute the said Sir John Hey Baronet Advocate my Procurator &c.

In witness whereof these presents consisting of this and the ten preceeding pages of paper (duly stamped) with two marginal additions on the ninth page hereof the one consisting of the word "sixty" and the other of twenty words beginning with "and" and ending with option and on which last mentioned page the words "twenty two" and "after her mother's death" are delete (the said marginal additions and this testing) clause from the word "whereof" being written by William Ritchie, Solicitor of Supreme Court in Scotland and the rest of these presents being written by William Walker, Clerk to Mssrs. Campbell & Mack in Society, Edinburgh, for the said William Richie, are (with the said marginal additions) subscribed by me at Edinburgh the tenth day of January in the year one thousand eight hundred and twenty two
Before these witnesses the said William Richie and Thomas Henderson his clerk (signed) John Scott   Wm Richie, witness,    Tho. Henderson, Witness.

Extracted from the Records in her Majesty's General Register House upon the twenty seven preceeding pages of stamped paper by me one of the Keepers of these Records Saving(?) Commission for that effect from the Lord Clerk Register -

 

 

Note: The wills in those will books are NOT actual wills. They are hand-written copies of a, "last will and testament," written by the court clerk, after the death of the testator, when the executor presented them to the court for probate. The court clerk didn't list the signatures at the bottom, he (or she) just put them in the book in whatever order they were in, on the original document, no spacing most of the time, no punctuation. The originals were kept by the executor.

We who have typed these wills, have made every effort to include all the errors that were on the microfilm, in order to avoid destroying the integrity of the originals, where ever they may be.

Page Contributed by Judy Benson and Ivy F. Benoit

Page Revised by Ivy F. Benoit (October 30, 2002)

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