APPENDIX.

THE MACKINTOSH BEQUEST.

IT is a fact worthy not only of remark, but of deep contemplative consideration, that in all countries, whether savage or civilized-whether sunk in heathen ignorance, or cheered and instructed with rays of revelation, an extraordinary degree of sanctity has always been attached to the fulfilment of testamentary declarations and dispositions. This must not be ascribed to vague usage, or even to traditional fixedness of feeling-we must mount much higher in order to offer a satisfactory explanation of the almost universal reverence with which the dying wishes of the departed are regarded by those who follow in the funeral tracks of a common mortality. It is by means of Testaments that the God of all grace hath been pleased to make known his immutable will, and unspeakable mercy to mankind; and therefore it seems to be a part of the divine wisdom, that men should possess an innate consciousness of the importance of any observance which shadowed forth the determinations of Deity. The scriptures of truth abundantly attest the solemn sense which the Jewish people were taught to cherish of the weight of testamentary obligations; and one of the earliest instances is in the case of Joseph, who, we are told, gave commandment concerning his bones-which was most reverently obeyed-Exod. xiii. 19. Not that we are to suppose that the previous patriarchs had not exercised their rights of command and bequeathment; but this instance is emphatically declared to have been allied with faith; and consequently bears a more direct impress of the divine mind as to the origin, dignity, and confirmation of testaments. Wherever legal institutions prevail, forms have been multiplied in the alleged view of hedging round the intentions of testators with all the precautionary technicalities that professional shrewdness can frame; and yet, truth to say, with very little beneficial effect. Five-sixths of the litigation growing out of the construction of wills, arises from the studied perplexity and vicious verboseness of modern will-making, which, in the vain attempt to give additional security to simply enunciated purposes, involves a testator's thoughts in a lawyer's mesh of crafty conf

sion. The clearest wills are, generally speaking, those which are penned by the disposing parties, for they know best what they have to leave, and how they mean to leave it; and surely if a testator has ordinary faculties for imparting his intentions, he can hardly fail of rendering his desires clearly intelligible.

After

These observations may fitly usher in a subject which engrosses not only a considerable measure of local interest, but which, from its general importance, as comprising great principles, requires to be made extensively known for diffusive public benefit. More than two months since there appeared in this journal a notice, signed by parties in London and Inverness, of an intention to apply to Parliament in the ensuing session, "for leave to bring in a bill to unite, under one trust and management, in whole or in part, the funds and property called THE MACKINTOSH FARR FUND, held by the Provost, Magistrates, and Dean of Guild of Inverness, under the will and relative codicils made and executed by the deceased WILLIAM MACKINTOSH, and the Funds and Property belonging to the Directors and Managers of the INVERNESS ACADEMY." some farther and more specific details of the objects to be accomplished by the proposed bill, the notice winds up with a momentous intimation of the avowed intent to alter, explain, and enlarge the powers and provisions of the said will and codicils. No mistake, therefore, can exist as to the result sought to be effected by the promoters of this bill. A will-clear as the noon-day in its main design-severely scrutinized by twofold litigation in the English aud Scottish courts; and acted upon for a period of twenty-five years, under the sanction of a "Decreet of Declarator," which, with all its tedious circumlocution, nevertheless establishes beyond the possibility of cavil, the judicial sanction of all the testator's intentions-this will, properly framed, fully litigated, and finally ratified and executed, is about to be abolished, if any one of the published notifications of the menaced bill shall pass into parliamentary enactment. Let us not be wheedled out of our conscientious common sense by any glosses which may be given to this proceeding. The very circumstance of applying to Parliament regarding a will, denotes a renunciation of the trusts which executorship involves; for, as we have recently remarked, is not the resort to legislation equivalent to making a new will for a dead man? If it be alleged that some instances have occurred in which the interference of the Legislature was successfully invoked to qualify the mode of administering bequeathed property; we reply that the instances have been most rare, and that the strongest possible case was required to be made out to shew the public impolicy of a devisor's injunctions-such, for example, as in the celebrated, Thelluson case. But in the case of Captain Mackintosh's will, we boldly maintain that the intentions of the testator are not only ex

pressed with unimpeachable clearness and accuracy; but that the intentions are, in the highest degree, praiseworthy, and entitled to the strictest-we had almost said, the most sacred observance. In order to present the subject in so clear a shape as shall render it easy of apprehension to all our readers, we shall here give an orderly epitome of those parts of Captain Mackintosh's will which bear directly on the question now discussed; and also call into quotation any illustrative passages which may cast a useful light upon the general intentions of the testator, as leading to his special bequest.

Captain Macintosh was of the Family of Farr; and we dwell a little upon this point, because we perceive an utterly unfair use of this fact has been made by the promoters of the proposed Bill. They pompously persist in styling the product of the bequest, THE MACKINTOSH FARR FUND, with the view, as it strikes us, of creating some presumptive pre-eminence in favour of the family thus singly associated with the fund. Now, there is not a particle of evidence in the will or codicils which goes to sustain any such supposition; on the contrary the worthy Captain takes care to inform the whole Mackintosh world that his "elder brother had never been of any service to him," and that "when in want of his aid he treated me unkindly and harshly." Therefore, we must take the liberty of docking this prefix "Farr," so ingeniously foisted in by our clever bill-manufacturers; and to assure our readers that there is no more ground for the designation than for the title Kylachy or Dalmigavie Fund!

Captain Mackintosh having dispatched his donatives to his relations, with a liberality which, as we have noticed, smacks somewhat of spleen and disappointment, next devotes his attention to a theme which lands us in the heart of the present controversy. "Having so far done with my relations," saith the bluff Captain, "it is my express will that £5000 be vested in trust with the Magistrates of Inverness for the time being, the interest of which sum is to be appropriated to the education of five boys in succession, to be selected first from the descendants of the family of Farr; next to those of Dalmigavie; and thirdly to those of the house of Kylachy, or their nearest relations, in the above order of consanguinity, but always of the name of Mackintosh; and it may be hoped that some of these boys, if they succeed in life (which this gives them a fair chance for), will follow the example. It is to be remembered that they are to be educated at the Academy lately established; but if the Trustees think it advisable, on discerning marks of genius, to send any of the boys to an university, they are not restricted from doing it. The said sum of £5000, as soon as may be expedient to be invested in lands in the county; and perhaps it might not be improper to paste up the copy of this be

quest in some part of the Academy, which, probably, would stamp an impression, and stimulate to similar acts of liberality." Such is the foundation of the Mackintosh fund; and no rational person, uninfected with the pedantic foolery which some legal practitioners would palm upon us as profound knowledge, can entertain the shadow of a doubt as to the true intent, positive meaning, or even indirect drift of the testator. He assigns a fixed source of income for the educational maintenance of a minimum number of boys; he tells clearly from what families those boys are to be eligible; and he indicates the academical institution where primary education was to be obtained, leaving a liberal discretion for the farther progress of any distinguished youth by means of a university curriculum-a Scottish university being, no doubt, distinctly in viewfor who can imagine that a rough Scotch sea-captain, full of laudable nationality, and fond of his clan, ever dreamt of Saxon scholarship, or the costly refinements of Oxford or Cambridge? To the will was subjoined a N.B. as follows:- "In the selection of the boys for education, my mother's family of Holm is to be preferred next to my father's, and in succession, before that of Dalmigavie."

In approaching the codicils which relate to the original bequest, we are favoured by this "ancient mariner," who was a celibataire, with a little episode of an amatory strain, which accounts for his doubling the amount designed to promote the intellectual welfare of the clan Mackintosh. Our naval friend had, it seems, got it into his head or heart, that "a most valuable young woman, Mrs Rae, sister to Sir George Dallas," was desperately in love with him, and would willingly have become Mrs Mackintosh, "were it expedient," on the Captain's part, "to form such a connection." To atone for this lack of expediency, the briny swain adds another £5000 to his former bequest, and re-disposes of the whole as follows:-" That is to say, I leave the above £5000 in trust with the Magistrates of Inverness, added to the £5000 in the first part of this will, intended there for the education of certain boys, the interest of which two sums, making in all £10,000, is to be regularly paid to her (the valuable Dame Rae) during her natural life; and after her decease, the sum is to be vested in lands for the education of boys as above; but that my will, with respect to the boys, may be put in immediate effect after my death; whatever sum of money may appear over and above the legacies in this instrument, which I expect will be considerable, I will that the interest of such money shall be appropriated for the education of boys, during the life of my dear Mrs Rae, and after her death, this money, whatever it may be, to be then proportionally divided amongst my brother and sister's children, or the survivors of them, or their heirs; and the £10,000, of which she is to enjoy the in