Scottish Court of Session Decisions

Alexander Bogie of Balass and Newmill died on 1st June 1870, leaving a trust-disposition and settlement, in which, inter alia, he provided that the rents of his properties of Balass and Newmill (amounting to £550) during the subsistence of a lease of thirty years should be divided annually among certain charities, one share to be given to “the Ragged Schools in Dundee.”

The question in this action (which was a multiplepoinding raised by Mr Bogie's trustees) was, Whether the Mars Training Ship, which was anchored in the Tay, in the immediate vicinity of the town, and within the precincts of the harbour of Dundee, though without the burgh and parish, came under the description of “Ragged Schools in Dundee, ” and was entitled to share in the bequest? The other claimant was the secretary of the Dundee Industrial Schools Society, which schools were alleged to be popularly known as “The Ragged Schools.”

The Mars Training Ship Institution was licensed on 30th September 1869 (immediately before the date of the testator's settlement), under the provisions of the Industrial Schools Act 1866. There were on board about 300 boys of the

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poorest class, who received education and were clothed and fed.

The Lord Ordinary ( Young), on 6th July 1877, pronounced an interlocutor finding that while existing circumstances continued, the real raisers would act within their trust and according to their duty by distributing the said share of the trust-funds between the “Dundee Industrial Schools Society” and the “Mars Training Ship Institution.” His Lordship added the following note:—

“ Note.—[ After narrating the facts as above stated]—In the argument submitted to me nothing turned on the use of the popular name ‘ragged school, ’ which is not in fact used by either claimant. It was conceded (I think rightly) that the description of the pupils, the terms of their reception, and the character of the instruction and discipline in the ship, were such that if instead of being a ship in the Tay without the burgh, it had been a building on shore within the burgh, the name ‘ragged school in Dundee’ would have been applicable. The objections to its applicability were rested on the character and locality of the structure in which this ragged school is conducted.

With respect to the nature of the structure, I think there is no validity in the objection. If an old ship affords the requisite accommodation, any kind of school may be conducted in it more or less conveniently, and the character of the school will depend precisely on such considerations as those which make this in my opinion a ragged school, as that term is popularly used.

With respect to the locality, I think the substance of the thing is to be looked to, and, so regarded, I think this ragged school is in Dundee, although without the burgh. It is a Dundee institution. Dundee might be well provided with ragged schools although all of them were without the burgh, and I should not in that case think that this bequest must fail because of the words ‘in Dundee, ’ for ‘ qui hæret in litera hæret in cortice.’ This opinion is of course only applicable while the ship, although in the water, is kept in its present place, or so close to Dundee that a school on shore equally near would, although outside the burgh, be properly and reasonably regarded as a town school. But while I have thought it proper thus to express my opinion, I have to point out that it only applies to the present time and existing circumstances, and goes no further than this—that in these circumstances, and while they remain unchanged, these trustees will be within their trust and according to their duty in admitting both claimants to participate in the bequest, in such proportions as they in their discretion shall judge proper, and I shall so express my judgment.

It is perhaps proper, although but for some observations made in argument I should have thought it superfluous, to say that my judgment has no bearing whatever in the case of a legacy immediately payable to ragged schools in Dundee, however the bequest may be expressed. The case I am dealing with is that of the division of an annual contribution, which is exhausted year by year, and admits of all changes of circumstances being followed and attended to by the administering trustees, and my opinion on it involves no indication of opinion upon the case of a proper legacy payable at once.”

Mr Swanston, the secretary of the Dundee Industrial Schools Society, reclaimed.

Authorities— Duff's Trustees v. Society of Scripture Readers, &c., Feb. 19, 1862, 24 D. 552; Grant v. Grant, Law Rep., 5 P.C. 727; Clergy Society, June 7, 1856, 2 Kay and J. 615; Wilson's Executor v. Scottish Society for Conversion of Israel, Dec. 2, 1869, 8 Macph. 233.

At advising—