Provost of Royal Burgh v. Abercrombie

Miller, J., delivered the opinion of the Court. The record in this case shows that Robert Daniel of the City of Baltimore, died in June, 1873, leaving a will, and the sole question for determination on this appeal is the validity or invalidity of the first clause of that will, which reads as follows: “1st.' I do hereby order and direct that the house and side lot where I now reside, situated on Hamilton Terrace, in the City of Baltimore, Nos. 239 and 241 N. Eutaw street, be sold by my executors hereinafter named, as soon after my death as they may deem expedient, and on such terms as they may think best; and I do hereby devise and bequeath the proceeds therefrom arising to the Magistrates and Town Council of the Royal Burgh of Dumfries, the county town of Dumfrieshire, Scotland, to be paid over to them by my executors aforesaid, together with such rents and profits of said property as may accrue up to the time of said sale, and which said executors shall collect; in trust and confidence nevertheless, to and for the uses, trusts and purposes following, that is to say, that they, the said ¹⁷⁷ Magistrates and Town Council, shall permanently invest said rents and profits and the proceeds of sale in Government stocks, or in other safe and profitable securities, and pay over the interest and dividends of such investments as they accrue and are received, to the High School of Dumfries, which is under their direction and care, either by increasing the salaries of teachers or providing scholarships, or in such manner as may seem best to said trustees, and most likely to promote the cause of education and elevate the standard of instruction in the said High School of Dumfries.” The hill avers, and the answer admits, the testator held only a leasehold interest in this property, and we must therefore treat the clause in question as a testamentary disposition of personal estate. The record further shows, that nearly a year before the'testator’s death, the care and management of this school was transferred from the Magistrates and Town Council and vested in the School Board for the Burgh, by Act of Parliament, (35 and 36 Victoria, ch. 62,) generally known as the Scotland Education Act. This transfer is without condition and absolute.

The terms of section 24 of this statute are, “Every burgh school shall he vested in and be under the management of the School Board of the Burgh in which the same is situated from and after the election of such School Board, and the said School Board shall thereafter, with respect to school management and the election of teachers, and generally with respect to all powers and duties in regard to such schools now vested in the Town Council and Magistrates or other authorities in whom the school management and the election of schoolmasters and teachers is at present vested, supersede and come in the place of such Town Council and Magistrates, or other authorities.” By other sections, these School Boards are duly incorporated, and the funds and revenues of such schools whether derived from public contribution or special endowment, are also ¹⁷⁸ placed under their management and control. Then by section 46, it is further provided, that “When in any burgh property or money has been or shall be vested in the Town Council, or in the Magistrates of any Burgh, or in any person or persons as trustees for the behoof of the Burgh School, or for the promotion of any branch of education in such school, or to increase the income of any teacher, the income or revenue, of such property or money shall, as it accrues, be accounted for and paid to the School Board of such Burgh, and shall be applied and administered by the said board according to the trusts attaching thereto,” and to this is added a provision that would be altogether beyond the scope of legislative power in this State if it interfered with vested rights, viz., “and it shall be lawful for the School Board from time to time with the sanction of the Board of Education, to vary or depart from the said trusts, with a view to increase the efficiency of the