Scottish Court of Session Decisions

Mr John Ferguson of Cairnbrock, who died on 8th January 1856, left a trust-disposition and settlement, dated 13th May 1853, and a codicil or deed of instructions, dated 22d September 1855. By the codicil the testator, inter alia, directed his trustees as follows:—“And lastly, to hold, retain, set apart, and invest as after written, the rest, residue, remainder, and reversion of my whole subjects, property, means, assets, estates, funds, debts, effects, and sums of

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money, heritable and moveable, real and personal, as a permanent fund, to be called The Ferguson Bequest Fund, and to pay, apply, and appropriate the interest and other annual income, profits, and produce thereof, in and towards the maintenance and promotion of religious ordinances and education and missionary operations, ” in certain counties in Scotland, “and thereafter, if my said trustees in Great Britain shall think fit, in any other counties in Scotland; and that by means of payments for the erection or support of churches or schools (other than and excepting parish churches and parish schools) belonging to or in connection with quoad sacra churches belonging to the Established Church of Scotland, and belonging to or in connection with the Free Church, the United Presbyterian Church, the Reformed Presbyterian Church, and the Congregational or Independent Church, all in Scotland, or any or either of them, or in supplement of funds collected for these purposes, or in supplement of the stipends or salaries of the ministers of the said quoad sacra and other four churches; and by payments of salaries or in supplement of the salaries of religious missionaries, and of teachers of schools of or in connection with the said quoad sacra churches and the said Free Church, United Presbyterian Church, Reformed Presbyterian Church, and Congregational or Independent Church; and by payments for forming and maintaining, or in aid of funds raised for forming and maintaining, libraries for the use of the general public—such missionaries, schools, and libraries being under the superintendence or management of members in full communion with one or other of the said five churches: Declaring that the application and appropriation of the trust-funds shall be entirely at the option and discretion of the quorum of my said trustees as to the proportions thereof to be applied to the said several objects.”

The trustees administered the fund according to the directions of the truster until the year 1869, when they applied to Parliament with the view of obtaining an Act for their incorporation, and for enlarging their powers and other purposes. The bill was remitted to two Judges of the Court of Session, before whom all parties having interest were called to appear by special advertisement in the usual form. No opposition was made to the bill, and after a report by the Judges it was passed into an Act. The truster in his deed had declared it to be his wish “that the trustees for the execution and management of the permanent trust hereby created shall be thirteen in number, and shall consist of members of the said five churches, in the following proportions, viz.—three members of the Established Church, four members of the Free Church, four members of the United Presbyterian Church, one member of the Reformed Presbyterian Church, and one member of the Congregational or Independent Church, all in Scotland;” and by the Act the persons therein named, “together with the persons to be from time to time elected or assumed as herein and in the trust-deeds provided in the room of any trustee or trustees ceasing to act, so as to make up the number of the trustees to thirteen, in the proportions of church membership herein and in the trust-deeds specified, ” were declared to be incorporated under the title of the Ferguson Bequest Fund.

In the year 1863 a difference had arisen among the members of the Reformed Presbyterian Church as to discipline, and a separation took place in the body so styling themselves. A minority, consisting of four ministers and some elders, then withdrew from the majority, and after that date continued as a distinct and separate church. They assumed the name of the Reformed Presbyterian Church of Scotland. In 186.5 the minority had presented a memorial to the trustees claiming to be the Reformed Presbyterian Church, and as such entitled to participate in the management and benefits of the fund. But the trustees continued to recognise the majority as the Reformed Presbyterian Church, and the trust was administered on that footing. No further action was taken by the minority until the year 1876. When in that year the majority had united themselves with the Free Church of Scotland, the minority, after presenting a memorial to the trustees, stating that the difficulties formerly in the way of their being recognised as the Reformed Presbyterian Church had been removed, and they were now entitled to participate in the fund, further raised an action of declarator concluding “that they should be found and declared to be the Reformed Presbyterian Church of Scotland to the exclusion of the majority of 1863, and those who have since adhered to them, and that as such they alone are entitled to participate in the benefits provided in the said codicil to objects connected with the Reformed Presbyterian Church, and that they are also entitled to have one of their own body elected as a trustee on the ‘Ferguson Bequest Fund.’” The action further involved the removal of the trustee, who had represented the party who had now joined the Free Church. This action was raised on 12th June 1877.

Defences were lodged both by the trustees of the fund and by the majority of the Reformed Presbyterian Church, who were also called as defenders.

The trustees were at this time considering what they should do in the circumstances narrated, and since the union with the Free Church they had made no “grants to objects connected with the Reformed Presbyterian Church, except upon applications lodged with them prior to the date of the said union.” They accordingly, on 15th October 1877, presented a petition to the Court for directions—(1) Whether it was their duty to recognise the parties representing the minority of the Reformed Presbyterian Synod of 1863, or the congregations of the Reformed Presbyterian Church which united with the Free Church in 1876, or either of them, as constituting the Reformed Presbyterian Church within the meaning of the codicil of the late John Ferguson and of the “Ferguson Bequest Fund Act 1869? (2) Whether they were in the meantime entitled, in the exercise of the discretion conferred upon them by the codicil and Act aforesaid, to make grants to churches, schools, libraries, ministers, missionaries, or teachers connected with both or either of the parties aforesaid? (3) Whether the trustee who has hitherto acted was entitled to continue to act as a trustee on the “Ferguson Bequest Fund, ’ or whether they were bound to assume a trustee who was in full communion with the body representing the minority of 1863?

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The 18th section of the Act of 1860, on which they founded, was as follows;—“In the event of any question or difficulty arising as to the construction of the trust-deeds or of this Act, or as to the proper operation and administration of the trust, or in consequence of the lapsing or failure of any of the purposes of the trust, or in consequence of any other special fact or occurrence, the trustees may apply to the Court for direction, by petition disclosing the circumstances material for the consideration of the Court, who thereupon shall order such intimation or service as they shall think fit; and shall have full power and discretion to give such direction as they shall consider just and best for the ends and uses of the trust; and the trustees acting on such direction shall be held to have discharged their duty as trustees, and to be relieved of all responsibility in the subject-matter of the said application; and the expense of such application, and of all proceedings connected therewith, shall be defrayed out of the fund.”

The petition was served upon, and answers were lodged for, the bodies representing respectively the majority and minority in the division that had taken place in 1863 in the Reformed Presbyterian Church.

The petitioners and the majority, who were represented by separate counsel, argued that it was quite within the competency of the Court under this section to deal with the circumstances that had arisen. They had no wish to raise now the question raised in the declarator, or to prejudice its decision, but merely asked for temporary directions. The majority were entitled to hold the position they had held since 1863. They had enjoyed the benefits of the fund since that date without any objection; they had been represented without any objection in the trust; no opposition had been offered to the Act of Parliament—and of all these things the minority must have been aware.

The minority argued—It was inexpedient to determine the rights of parties in this petition. Besides, the clause of the Act referred to did not warrant the application; declarator was the only method of trying the rights of parties. If the Court was to give judgment in this petition, it should be remembered that the minority had protested in 1863 and memorialised the trustees. Then, even if the majority were right in their contention that they constituted the Reformed Presbyterian Church up to 1876, they had by their union with the Free Church, in that year merged themselves in it.

The Court held that they were empowered by the 18th section of the Act of Parliament to give the trustees directions as to the difficulties that had arisen, and that the principle by which they must be guided was, as in all cases involving the question of interim possession, uti possidetis. They therefore directed the trustees to pay as they had been in use to pay, and to continue as trustee a member of that body which they had been in use to hold to be the Reformed Presbyterian Church.