Scottish Court of Session Decisions

This petition was presented by John Burnett, judicial factor on the trust created for behoof of the Licensed Episcopal Congregation in Brechin, praying for the direction of the Court as to how the trust funds in his hands should be divided or administered.

The history of the trust, so far as bearing on the present question, was as follows:—For some time after the .Revolution of 1688 the then Episcopalian incumbent continued to officiate in the Parish Church of Brechin, but early in the eighteenth century an Episcopalian Congregation was formed, who purchased a piece of ground in the city, built a chapel upon it in 1743, and continued to worship in the chapel until the Penal Acts of 1746 and 1748 were passed. The disposition, which was dated 3rd October 1749 (and recorded 21st April 1755), was taken in the name of Patrick Dickson, as trustee for the said congregation, and by it he acknowledged and declared that the price had been “truly paid out of the money belonging to the Episcopal Congregation of Brechin, and that the lands were purchased for making a convenient meeting-house or house of worship for the said congregation.”

Dickson thereafter, in respect of advances made by Colin Alison and Alexander Jack and others, disponed to them and others, under certain specified conditions, as trustees for and to the use of the said congregation, and also in security to them for their advances, the subjects “presently used as the Licensed Episcopal Chapel or house of worship.”

The term “Licensed Episcopal Chapel” meant a chapel the minister or officiating pastor of which had satisfied the conditions required by the Penal Acts of 1746 and 1748. By 10 Anne, c. 7, persons of the Episcopal persuasion in Scotland had been permitted to assemble for divine worship provided, inter alia, that none should officiate or exercise the functions of a pastor unless he possessed and had registered a letter of orders from some Protestant bishop. But the Act 19 Geo. II. c. 38 (1746) (explained by 26 Geo. II. c. 34) required such pastors to qualify by taking the oaths to His Majesty, on pain of their meeting-house being shut up, inflicted certain penalties of fine, imprisonment, and loss of civil practice on all persons resorting to an unregistered meeting-house, and enacted that the letter of orders above required must be by some bishop of the Church of England or of Ireland. In consequence of these enactments the public ministration and rule of the Scottish Episcopal clergy almost entirely ceased, their services were conducted privately, and former congregations dispersed. In some towns, including Brechin, the local congregation, or the majority of members, procured the services of an English or Irish Episcopal clergyman qualified under the Act, and continued to meet for divine worship publicly in their chapels as before the said Acts. The same religious articles and doctrines were taught, and the same forms of worship and ritual were observed as in the Scottish Episcopal Churches prior to 1746, but the service included prayer for the reigning sovereign. These were usually called Licensed Episcopal, but sometimes Qualified English Chapels.

By disposition dated 9th August 1790, and recorded 15th June 1804, the said Alexander Jack having narrated the above-mentioned disposition by Patrick Dickson, that he was then the only surviving and acting trustee of the Licensed Episcopal Congregation in Brechin thereunder, that all the said advances had been repaid, and that the said congregation on 18th March 1790 had chosen John Smith of the navy, George Stewart, and twelve other persons as. managers or trustees for the said congregation, five to be a quorum, and required him to denude in their favour, conveyed the said subjects to the said managers and their successors in office, named by the said congregation for ever, to be held in trust under the control and direction for and upon account of the said congregation, whose orders and directions the trustees and their successors should be bound to obey.

In 1792 the Penal Laws against Episcopalians in Scotland were relaxed by the Act of Relief (32 Geo. III. c. 63), which permitted their ministers to qualify by taking the oaths of allegiance and subscribing a certain declaration, but as regarded Brechin the Licensed or Qualified English Congregation continued to maintain its independent position down to 1830.

Between 1792 and 1800 a Scottish Episcopal Congregation was formed in Brechin, consisting originally of such members of the Episcopal persuasion as had held aloof from pastors and chapels licensed under the said Acts. This congregation built a chapel in St Andrew Street, known as the Church of St Andrew, Brechin, in the diocese of Brechin, according to the division of dioceses for the purposes of the Scottish Episcopal Church. The Licensed or English Congregation thereafter suffered a gradual diminution of the number of its members, who were attracted to St Andrew's Church. But they continued, considerable in number, to raise sufficient funds for minister's stipend and other congregational purposes, and maintained stated religious worship until the death of their pastor Mr Straton in 1820. After that period they were unable to raise a sufficient stipend to secure a permanent English pastor, though religious services were maintained until June 1830 or thereby, at which date they had incurred debts to the extent of £145 or thereby.

By disposition dated 12th November 1829 the said John Smith, George Stewart, and threes others, the surviving trustees and disponees in the disposition by Alexander Jack already referred to, disponed the said subjects to John Burnett, David Burnett, and ten other persons, the then managers of the Licensed Episcopal Congregation, and their successors in office, in trust for behoof of the said congregation. The said trustees were duly infeft on 17th November 1829.

By contract of wadset and disposition in security, dated 17th and registered in the Burgh Court Books of Brechin 19th days of June 1830,

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the said trustees David Burnett and others, specially authorised by said Episcopal Congregation, in consideration of the sum of £145 sterling instantly advanced to them as managers foresaid out of the money belonging to the Relief Congregation in Brechin in connection with the Relief Synod of Scotland, by James Ramsay, treasurer of the latter congregation, wadsetted and disponed to William Ferrier, the said James Ramsay and others, the then managers of the said Relief Congregation, and to their successors in office, the said chapel, in trust for the use and behoof of the said Relief Congregation, but redeemable by the said disponees' or their successors in office, assignees or other successors, in right of the premises from the said wadsetters, by payment of £145; but providing that the said chapel should be used solely as a chapel or place of worship for the said Relief Congregation, and for no other purpose whatever, and that if the said Relief Congregation should at any time cease to be connected with the said Relief Synod of Scotland, or should cease to maintain religious worship regularly in said chapel, by a preacher in connection with the said Relief Synod, then the wadset right should ipso facto cease and determine, and the said subjects revert to the disponers and their foresaids, they being bound to pay the said principal sum of £145.

The said wadset price was applied by the said managers, John Burnett, David Burnett, and and others, in payment of the debts of the said Licensed Episcopal Congregation. The Relief Congregation entered into possession of the chapel. Thereafter the Licensed Episcopal Congregation ceased to meet for religious services or other purposes as a separate body. A large number of its members, as at June 1830, including the said managers, continued to attend the said chapel, and joined in the worship and services of the Relief Congregation, and became ordinary members or adherents of the said congregation.

The Relief Congregation, composed as aforesaid, possessed the said subjects as a chapel until the Relief body in or about 13th May 1847 became incorporated in the United Presbyterian Church. After the incorporation that congregation was and still is known as the High Street United Presbyterian Congregation, and continued to possess the said subjects as before until a few years before this petition was presented, when they erected a new church, and ceased to maintain religious worship in the said chapel.

The survivor of the managers of the Licensed Episcopal Congregation, who were the disponees under the disposition of 12th November 1829, and reversers under the contract of wadset already referred to, was David Burnett, upon whose application the present petitioner had been on 9th January 1878 appointed judicial factor on the trust-estate of the Licensed Episcopal Congregation. Upon his appointment the petitioner applied to the managers of the United Presbyterian Congregation for a reconveyance of the said subjects in consequence of the wadsetter's right (under the condition in the contract of wadset) having ceased. The petitioner advanced the redemption price of £145, and £6 as the balance of the value of certain articles of chapel furniture taken over by him and the said managers in May 1879, and reconveyed the said subjects to the petitioner as judicial factor, who completed his title by registration, and subsequently sold them under the authority of the Court for £500. After payment of the expenses of the factory and the redemption money there remained in the petitioner's hands a free balance of £176, 14s. 2d.

The Licensed Episcopal Congregation having ceased to exist there was no trust beneficiary entitled to this sum, or the income arising therefrom, and it was with a view of getting the direction of the Court as to the application of this sum of £176, 14s. 2d. that the present petition was presented.

The petitioner averred that the object of the trust was in his opinion the promotion and maintenance of religious services according to the Episcopalian form of worship in Brechin and its vicinity; that it was practically impossible to trace the individual sources of the funds invested in the purchase of the said subjects referred to in the disposition of 1749 by Patrick Dickson and others; and that, as far as was known, there was not in existence any complete record of the membership of the Licensed Episcopal Congregation. The petitioner stated that he was ready to pay over the free balance of the funds to whichever party should be found in the judgment of the Court entitled thereto.

Answers were lodged for the Rev. James Crabb and others, the vestry of St Andrew's Episcopal Church, Brechin, in which they claimed that the fund in question should be paid over to them as representing the congregation for whose benefit the trust was originally created. They denied that the majority of the Licensed Episcopal Congregation joined the Relief Church, and submitted that the original congregation who bought the land in 1739, and built the chapel in 1743, still existed in the congregation of St Andrew's Church. That this congregation were engaged in the erection of a new church, and that if the funds in the hands of the judicial factor were given over to them they would be applied in building a church, “for the Episcopal Congregation in Brechin,” the purpose for which the original fund was raised.

Answers were also lodged for the Rev. B. W. Orr and others, on behalf of the High Street United Presbyterian Congregation, who maintained that they had an equitable claim to the fund in question. They averred that when the chapel was conveyed in wadset to the Relief Congregation a large majority of the members became members of the Relief Congregation, which became incorporated in the United Presbyterian Church in 1847, and was now represented by the respondents; that when the Licensed Episcopal Congregation amalgamated with the Relief Church they did this deliberately rather than amalgamate with the St Andrew's Congregation which at that date had been for a considerable time in existence. The respondents claimed this fund also on the ground that it was the balance of the price of the church which was wadsetted to their predecessors in 1830. They averred that while in their possession a considerable sum was expended in improving the building whereby the price ultimately realised by the petitioner was increased.

Argued for the Rev. J. Crabb and others—The original fabric was built out of money belonging to the Episcopal Congregation of Brechin, and its clergyman belonged to the Scottish Episcopal Church. Its character was not changed during the subsistence of the Penal Statutes, and on their repeal the church still remained in the possession of the Episcopalian body in Brechin. Nor did the existence of the wadset in any way affect the question of title, for on paying up the redemption money the Episcopalian Congregation would still have been in right of the fabric. When this was done in 1879 by the petitioner the reversionary right of the congregation still remained, and so they were entitled to any balance which might remain in the factor's hands after all expenses had been met. The price realised represented really the value of the site, for which reason the sum expended on the fabric by the United Presbyterians could not be taken into account. The mere fact that the majority of the original congregation at the time of the wadset joined another body, even if true (which was not admitted), was of no avail in the present question, as the minority who represented the principles were entitled to the property.

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Argued for the Rev. R. W. Orr and others— They were entitled to this fund as being the representatives of the congregation which worshipped in the church before the contract of wadset was entered into. The wadset was an alienation in favour of another church, and it was terminated in 1879, when the title of the reverser revived, at which time the wadsetters and the reversers became one body— Attorney-General v. Bunce, April 22, 1868, 6 L.R., Eq. 563. Further, they were entitled to this sum upon equitable grounds, because the reversion of £176 was the result of money spent by them in keeping up and improving the building while it was in their hands. In 1830 the church was worth £300. £200 was laid out on it in 1832, and as the result of this outlay it realised £500 in 1880— Kennedy v. Morrison, March 20, 1879, 6 R. 879.

At advising—