Scottish Court of Session Decisions

This was an action at the instance of certain poor persons in the parish of Leuchars, against the minister and Kirk-session of that parish, in the following circumstances:—The late Alexr. Kettle Young left a sum of £500 to the Kirk-session of Leuchars, with directions to them to apply the interest for “relief of such persons, natives of the] parish, and particularly of the village of Leuchars, as the said Kirk-session shall consider proper objects of such aid, but who have never received any aid from the Poor funds,—to be paid at such times, in such small sums as shall be considered to be most useful to the said poor persons, declaring that the minister and elders constituting the Kirk-session of the parish of Leuchars for the time being shall be perpetual patrons Of the said sum, and shall have the sole power of naming the said individuals.”

The pursuers, who were poor persons in the parish falling under the description in the bequest,

Page: 2↓

alleged that for some years past the de-fenders had not duly executed the purposes of the trust, in that no nomination had been made by the Kirk-session of persons entitled to receive relief from Young's bequest, nor, so far as the pursuers knew, had the interest of the fund been applied to any charitable purpose whatever, or, at all events, had not been applied in terms of the bequest. The main conclusions of the summons were for declarator that for the last nine years the trust had not been administered in terms of the truster's settlement, and that in future, the Kirk-session were themselves to nominate the recipients of the charity.

The defenders admitted that the custom had been for the minister to distribute the fund year by year without calling a special meeting of the Kirk-session for the purpose of making express nomination.

The Lord Ordinary pronounced the following interlocutor:—“Sustains the defences, and assoilzies the defenders from the conclusions of the summons, and decerns: Finds the pursuers liable in expenses, and remits, &c.

“ Note.—The pursuers state no case to warrant the interference of the Court. Having regard to the character and amount of the charity in question, I think the Kirk-Session acted reasonably and within their power when they left the distribution to the discretion of the minister. Having confidence, no doubt well-founded, in his integrity and judgment to fulfil the intention of the charitable giver, I think they could not have taken a wiser course. The minister no doubt gave such an account of his proceedings from time to time as satisfied the Session, and any more formal accounting would, with reference to such a fund, and the purpose for which it was given, have been out of place. Accounts open to public inspection are certainly not required, and an accounting in this Court, at the instance of the pursuers or others like them, would put the little fund in a fair way of being extinguished altogether, by a rapid distribution of it in a manner not contemplated by the charitable donor. There is, in truth, nothing for it but to trust the Kirk-session, as the giver did, implicitly; and unless the members shall concur in deliberate misapplication, which is not reasonably to be apprehended, there is no real danger. The practical local checks against any serious abuse are quite sufficient, and I can give no countenance to a resort to this Court with such a case as the pursuers present. I see no reason to doubt that the defenders have been acting properly according to the purpose and intention of the charity.”

The pursuers reclaimed.

The pursuers pleaded inter alia—“(2) The administration and management by the defenders of the charitable bequest mentioned in the condescendence having been at variance with the wish and intention of the said Alexander Kettle Young, said management and administration were and are illegal and ultra vires of the defenders, and the pursuers are entitled to decree in terms of the second conclusion of the summons.”

The defenders pleaded inter alia—“(2) The defenders are entitled by the terms of the bequest to distribute the said charity among poor persons of the class mentioned, at such times and in such small sums as shall be considered most useful, without any express nomination to the fund at meetings of Session.

Authorities cited— Liddle v. Kirk-Session of Bathgate, 14th July 1854, 16 D., 1075; Petrie v. Meek, 4th March 1859, 21 D., 614.

At advising—