Scottish Court of Session Decisions

This was a petition at the instance of Andrew Fletcher of Salton and Baron Sinclair of Herdmanston, the trustees under the late Bishop Burnet's Trust, parish of Salton, praying the Court “to make such rules, orders, provisions, and directions for the management, regulation, support, and continuance” of the charity as should be found “agreeable to the tenor and true meaning of the will, … and the pious and charitable intention of the donor.”

The truster was the Right Rev. Dr Gilbert Burnet Lord Bishop of Salisbury, who died in 1714, leaving a will, dated Oct. 24, 1711, in which funds were bequeathed for the foundation of the charity in question. The funds amounted to 1000 merks yearly, to be bestowed as follows:—“Thirty children of the poorer sort shall be put to school to learn reading, writing, and casting accounts; to every one of these ten merks Scottish shall be given to cloath them in plain grey clothes, all of one sort—this is 300 merks; after they have been four years at school and are fit to be bound out to trades or to follow husbandry they shall receive forty merks a-piece—which is four hundred merks more; but this four hundred merks during these four years that they are at school shall be applied to the building a good school-house near the churchyard and for purchasing half an acre of ground for a garden and outlet to the school-house. I appoint one hundred merks a year of addition to the schoolmaster's allowance, and fifty merks a year to the increase of the library began for the minister's house and use, of which he shall every three year give an account to the Lairds of Salton and Hermistone, and to any two neighbouring ministers, which they shall be obliged to sign for his discharge, unless they can shew reason to the contrary.… The remaining one hundred and fifty merks to be distributed yearly to the poor of the parish by the minister, with the approbation of the Lairds of Salton and Hermeston, and such others as join with him in taking care of the poor of that parish. And this course I order to be continued for ever, as an expression of my kind gratitude to that parish.” The endowment was managed by trustees appointed under a private Act of Parliament, 22 Geo. II. No. 62, in whose name the Act directed that the funds of the charity should be invested, subject to the control and direction of the Court of Session. In the words of the Act, the proceeds of the fund were to be “under and subject to such rules, orders, provisions, and directions for the management, regulation, support and continuance of the said several charities, as the said Lords of Session shall in that behalf from time to time order, direct, or appoint, and as they shall judge and determine to be agreeable to the tenor and true meaning of the said will and codicil, and the

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pious and charitable intention of the donor therein expressed.” The trustees had accordingly managed the endowment since the date of the Act according to their discretion, without interference from any source till 1873, when the School Board of the parish, appointed under the Education (Scotland) Act 1872, claimed that the funds of the trust, in so far as they were to be paid as in addition to the schoolmaster's allowance, or in putting the children to school to learn reading, writing, and casting accounts, should be dealt with as being for behoof of the parish school of Salton, and as such should be applied by the School Board. To this effect an action was brought by the School Board, and about the same time certain parishioners raised an action of declarator, count, reckoning, and payment, in which the management of the fund by the trustees was impugned, and reduction was asked of their rules and regulations. In the first process the Lord Ordinary ( Young), in March 1876, gave judgment finding that the School Board was right in its contention so far as regarded that part of the trust-fund set apart for increasing the schoolmaster's salary, but otherwise assoilzied the trustees from the conclusions of the action. In the second case his Lordship sisted procedure. to allow the trustees to bring, as they intimated they would, the present petition for the authority of the Court to a revised scheme of management.

The petition, which was presented under the Act 22 Geo. II. No. 62, set forth the following explanations with reference to Bishop Burnet's scheme:—“(1) The trustees have experienced difficulty in administering the sum provided for clothing the children on account of the increase in the price of materials, and therefore in recent years comparatively small sums only have been employed in the purchase of boots and other smaller articles of dress. The fund is not sufficient to purchase clothes for the whole thirty children without encroaching unduly on other purposes; and besides, the trustees are of opinion that at the present day, and in the altered circumstances of society, it is not advisable that a number of children should be selected to be dressed ‘in plain grey cloaths, all of one sort,’ or in any other distinctive uniform. (2) The trustees have found it impossible for many years to expend beneficially, or in the manner intended by the truster, the 400 merks a-year provided for apprentice fees. The reason of this is that it has entirely ceased to be the practice in the parish and neighbourhood to take agricultural apprentices. (3) The trustees are now bound to pay this annual sum to the school board of the parish conform to Lord Young's interlocutor in the case before-mentioned. (4) For many years the payment of 50 merks for the minister's library has been increased to £5 sterling, and this increased allowance the trustees propose to continue. (5) For many years the payment to the poor of the parish of 150 merks has been increased to £10 sterling, and this increased payment it is proposed to continue. A claim having been made in the year 1855 by the Parochial Board of the parish to this annual payment, the trustees were advised by Counsel that the minister of the parish was entitled to the distribution thereof, with concurrence of the Lairds of Salton and Herdmanston, and that the money was not intended for such only as were legally paupers. It is proposed to continue the distribution on the same footing.”

It appeared from the proposed new scheme of the trustees, which was printed in an appendix to the petition, that the whole fund at their disposal amounted to £85 per annum, under deduction as above of £5, 12s. paid to the School Board, and £5, 8s., the expenses of management. It was proposed that the £74 thus remaining should be expended as follows:—£5 upon the purchase of books and maintenance of the Burnet Library; £10 for distribution among the poor of the parish— the fund to be distributed by the minister, and not to be confined to those who were legally poor; £30 for the education of thirty children, their school fees and school books; £29 for bursaries for four more advanced scholars. The fund provided for bursaries was to be administered as follows:—“The trustees shall each year choose from among the children on the fund one child to receive and hold for four years one of said bursaries, to be paid to or applied by the trustees for behoof of said child while continuing his or her education in one or other of the schools in said parish, or at any other school that the trustees may select, or while learning such trade or business as may be approved of by the trustees.”

The petition when presented was ordered to be intimated and served upon the Rev. T. N. Drummond, the minister of the parish, who lodged answers objecting to certain of the proposed alterations.

Certain parishioners also lodged answers, stating that in several respects the scheme was disconform to the will and intention of the founder.

At advising—