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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson and Others (Buchanan's Trustees) v. Ministers of Kilmarnock, Etc [1886] ScotLR 24_216 (18 December 1886)
URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0216.html
Cite as: [1886] ScotLR 24_216, [1886] SLR 24_216
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SCOTTISH_SLR_Court_of_Session
Page: 216↓
Court of Session Inner House Second Division.
v.
Facts:
A truster directed her trustees to convey a certain portion of the funds which she left for charitable purposes to the Provost and Town Council of Kilmarnock, the “clergymen of the Established Church of Kilmarnock, and the clergyman of the parish of Riccarton,” as trustees. In Kilmarnock there were various Established Churches situated in the old parish and in the burgh which had been erected as quoad sacra churches out of the original parish. Held that the ministers being ministers of Established Churches within the town of Kilmarnock were trustees along with the collegiate ministers of the original parish and the minister of Riccarton, but that the minister of a quoad sacra church situated some distance out of the town, part of whose parish had been disjoined
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from the original parish of Kilmarnock and part from Riccarton and Galston, was not. The truster further directed the distribution of the fund to be by payment of the funds equally between the parishes of Kilmarnock and Riccarton, to be paid to and expended by the ministers of said respective parishes in charitable and benevolent purposes connected therewith. Held (1) that the fair meaning of the direction was that the trustees to distribute should be the same body as the trustees to hold, and therefore that those quoad sacra ministers who had been found to be trustees should share in the distribution; (2) that the one-half of the fund was to be administered by the minister of Riccarton alone, and the other half jointly by all the ministers of Kilmarnock who had been found to be trustees.
This was a Special Case stated for the opinion of the Court under the following circumstances—By a trust-disposition and settlement dated 8th July 1861, Misses Margaret, Jane, and Elizabeth Buchanan disponed to certain trustees therein named the whole means and estate which might belong to the longest liver of them at her death, in trust for certain purposes therein stated. The trusters reserved full power to themselves and to the survivor to alter or revoke the said trust-disposition and settlement in whole or in part. Miss Elizabeth was the last survivor of the three sisters, and on 11th May 1871 she executed a codicil to the said settlement, which along with the original deed was recorded in the Books of Council and Session on 8th May 1875. In the original settlement the trustees had been directed to convey the lands and estate of Bellfield—part of the trust-estate—to “the Provost, Magistrates, and Town Council for the time being of Kilmarnock, and their successors in office, the clergymen of the Established Church of Scotland in Kilmarnock for the time being, and their successors in the ministry, and the clergyman of the parish of Riccarton for the time being and his successors in office, all in trust,” for certain purposes. By the codicil Miss Elizabeth Buchanan, inter alia, appointed the trustees therein named to hold for the period of ten years, from and after the first term of Whitsunday or Martinmas occurring six months after her death, the lands and estate of Bellfield. At the end of that time the trustees were directed to make over the said lands with any accumulations of rents which might be in their hands, “to and in favour of the Provost and Magistrates of Kilmarnock, the ministers of the Established Churches of Scotland in Kilmarnock, and the minister of the parish of Riccarton, all for the time being, and their successors in office,” and to the trustees themselves during their lives, in trust for the purposes mentioned. Of these purposes the material one to the present Special Case was the sixth, which was as follows—“For payment of the balance or residue of the said revenue or income equally between the parishes of Kilmarnock and Riccarton, to be paid to and expended by the ministers of said respective parishes in charitable and benevolent purposes connected therewith.”
Miss Elizabeth Buchanan died on 23d April 1875, and her trustees entered into possession and administration of the said trust-estate. The ten years during which the trustees were directed to hold the said trust-estate expired at the term of Martinmas 1885, and it became the duty of the trustees to hand over the estate as directed by the said codicil. In the course of doing so a question arose as to the meaning of the expression “the ministers of the Established Churches of Scotland in Kilmarnock.” The Laigh Kirk was the original church of the parish of Kilmarnock, and was a collegiate charge, but several quoad sacra parishes had been disjoined and erected from it—the High Kirk of Kilmarnock in 1811; St Marnock's Church in 1862; St Andrew's Church in 1868. The churches and parishes of High Kirk and St Andrews were entirely within the burgh and the old parish of Kilmarnock. The church of St Marnock was within the burgh of Kilmarnock, but part of the parish was outside the burgh—the rest being within both parish and burgh. In 1874–75 a church and parish quoad sacra were erected called Hurlford Church and parish. This parish was erected out of parts of the original parishes of Kilmarnock, Riccarton, and Galston. The church itself was situated outside the boundaries of the burgh of Kilmarnock, though in that part of the parish of Hurlford which was disjoined from the old parish of Kilmarnock. The trustees doubted whether the minister of the parish of Hurlford could be held to be a trustee as included in the designation, the “ministers of the Established Churchesof Scotland in Kilmarnock and the minister of the parish of Riccarton,” and the first question in the Special Case was whether he was such and therefore a trustee of the Buchanan Bequest. The next question was whether the ministers of the quoad sacra parishes of High Kirk, St Marnock's, St Andrew's, and Hurlford (fifth and sixth parties) came within the designation of ministers of the said respective parishes in the sixth purpose, which directed the payment of the income of the Bequest equally between the parishes of Kilmarnock and Riccarton, to be paid and expended by the ministers of the said respective parishes in “charitable and benevolent purposes connected therewith,” and if these ministers or any of them came within the designation, whether the fund was to be administered by them jointly within the respective parishes or in proportion to the population and area of the parishes, or on some other principle.
The funds of the part of the bequest available under the purpose under discussion were about £350 per annum.
This Case was stated to have a decision on these points.
The quoad sacra ministers argued—The phrases used in the deed show that Miss Buchanan intended that all the ministers of the Established Church of Scotland whose parishes formed part of the original parish of Kilmarnock should be trustees for holding the fund; that would include the collegiate ministers of the Laigh Kirk, the ministers of the High Kirk of St Andrews, St Mamock's, and the minister of the parish of Hurlford. It was impossible to separate the trustees for holding the fund and the trustees for distribution. All the reasons pointed to their being the same body. It was a question of carrying out the testator's intention. The minister of Hurlford must be included in both capacities as a trustee, as part of his parish
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belonged to the original parish of Kilmarnock, which along with the parish of Riccarton was the limit of the district Miss Buchanan intended to benefit. The other parties argued—It was admitted that all the ministers having churches within the bounds of the burgh of Kilmarnock were trustees for the holding of the fund. This included the ministers of all the quoad sacra parishes except Hurlford. As regards the trustees for distribution, according to the words of the deed they were a different body, and only the collegiate ministers of the Laigh Kirk and the minister of Riccarton were included.
At advising—
The questions are two in number, first—who are the trustees to hold; second, who are the trustees to distribute. The fund is to be divided into two portions. One-half of it is to be expended on charitable purposes within the parish of Kilmarnock, the other half in the parish of Riccarton.
The clause which establishes the trust for holding the fund is printed in the Case [and quoted supra]. By it the truster directs her trustees to pay the trust funds to the Provost and Magistrates of Kilmarnock, the ministers of the Established Churches of Scotland in Kilmarnock, and the minister of Riccarton.
The question which has arisen under this clause is, who are in the sense of the deed the ministers of the Established Churches in Kilmarnock? Putting aside the quoad sacra parish of Hurlford, which I shall deal with afterwards, it appears that in the town of Kilmarnock there is the original parish church, which is called the Laigh Kirk, and several quoad sacra churches which have been created from time to time. The question is whether the expression “ministers of the Established Churches in Kilmarnock” includes not only the ministers of the Laigh Kirk, but also the ministers of the quoad sacra churches, and in my opinion it includes the whole. It is plain that the latter are ministers of Established Churches in Kilmarnock, and it is as plain that according to the very expression of the deed more than one minister in Kilmarnock was to be a trustee. I am very clear therefore that the quoad sacra ministers are trustees as well as the minister of Laigh Kirk. It is impossible otherwise to satisfy the words of the trust-deed.
There is no question about the parish of Riccarton. With respect therefore to the constitution of the trust for holding the fund, I am of opinion that the trustees include the ministers I have mentioned.
With respect to the trust for distribution we have a different phrase. The clause is thus expressed—“For payment of the balance or residue of the said revenue or income equally between the parishes of Kilmarnock and Riccarton, to be paid to and expended by the ministers of said respective parishes in charitable and benevolent purposes connected therewith.”
If we had not anything else but these words there might be considerable difficulty in extending the trustees beyond, first, the minister of the parish of Kilmarnock—that is to say, the minister of the Laigh Kirk, and secondly, the minister of the parish of Riccarton. But I think it would not be consistent with the purposes of the trust and the intention of the truster to take these words according to their strict meaning. It appears to me that she must be held to have meant that the trustees for holding were also to be the trustees for distributing, and that the trustees for distributing, so far as regarded the parish of Kilmarnock, were not to be confined to the minister of the Laigh Kirk. With respect to Riccarton, the trustee for distributing is of course the minister of Riccarton.
I have yet to deal with the minister of Hurlford.
The position of Hurlford is peculiar. That parish has been formed partly out of Kilmarnock, partly out of Riccarton, and partly out of Galston, but I do not think that the minister can be held to be a minister of an Established Church in Kilmarnock. His church, although in the parish of Kilmarnock, is not in the town of Kilmarnock. I think that the words “Established Churches in Kilmarnock” refer to churches in the town of Kilmarnock, and do not extend to the whole parish.
I propose that the questions should be answered according to the opinion I have just expressed.
The Court pronounced this interlocutor—
“The Lords having heard counsel for the parties on the Special Case, are of opinion (1) with reference to the first of the questions therein stated, that the minister of the church and parish of Hurlford quoad sacra is not one of the ministers of the Established Churches of Scotland in Kilmarnock in the sense of the trust-disposition and deed of settlement and codicil mentioned in the Special Case, and is not a trustee of the Buchanan Bequest; (2) with reference to the second question, that the ministers of the parishes of the High Kirk quoad sacra, Kilmarnock, St Marnock's quoad sacra, Kilmarnock, and St Andrews quoad sacra, Kilmarnock, are for the time being entitled, along with the collegiate ministers of the Laigh Kirk, Kilmarnock, to receive and expend the one-half of the balance or residue of the income of the Buchanan Bequest falling to the parish of Kilmarnock, and that the minister of the parish of Hurlford quoad sacra is not so entitled; (3) with reference to the third question, that the minister of the parish of Hurlford quoad sacra is not entitled along with the minister of the parish of Riccarton to receive and expend the one-half of the said balance or residue falling to the parish of Riccarton; (4) with reference to the fourth question, that to the extent of one-half the fund is to be administered for the time being by the ministers of the Laigh Kirk, Kilmarnock, of the High Kirk quoad sacra, Kilmarnock, St Marnock quoad sacra,
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Counsel for the First, Second, Third, and Fourth Parties—Sol.-Gen. Robertson, Q.C.— H. Johnston. Agents— Gibson & Strathearn, W.S.
Counsel for Fifth and Sixth Parties— D.-F. Mackintosh, Q.C.— Johnston. Agent— George J. Wood, W.S.