Scottish Court of Session Decisions

In September 1845 Lady Harriet Grant Suttie of Prestongrauge, aided by other ladies, also members of the congregation of the Parish Church of Prestonpans, held a sale of work to raise funds to provide an infant school in room of one then recently discontinued owing to the secession of a part of the congregation in 1843, and which had prior to that date been maintained by the kirk-session in premises held on lease. The nett proceeds of the sale amounted only to £96, 15s. 2d. As this sum was too small to build or maintain the school desired, it was handed over to the Rev. John Struthers, LL.D., then minister of the said parish, in order that it might be held and accumulated, and it remained in his trust on deposit-receipt in his name, as minister of the parish, until September 1865. In February 1865 the fund had increased to £162, 13s. 8d. by accumulation of interest. Sir George Grant Suttie, the husband of Lady Harriet, then addressed the following letter to Dr Struthers—“… The object of the contributors being to support an infant school, and there being now three female teachers for young children in the parish, it appears to me that the object of the contributors will now be best attained by applying the proceeds of the fund annually to pay the school fees or otherwise assist the young children of poor but deserving persons, and I will be well pleased to hear that you and your kirk-session will undertake this duty.” The kirk-session ultimately accepted the trust and administration of the fund, and carried out the trust by making such payments as they considered judicious out of revenue towards the fees or clothing of the young children of poor deserving persons.

In 1891 the revenue had come to exceed what was required for that purpose, and by judicious investment the fund had grown to about £475.

The School Board of Prestonpans having demanded that the Kirk-Session should pay over the fund to them, the Kirk-Session presented an application to the Court, in which they asked the Court “to authorise the petitioners to apply the said fund towards the erection of Sunday school premises in connection with the church of the parish of Prestonpans, or to settle a scheme for the application of the said fund, and appoint the petitioners to hold and administer the same under said scheme.”

They stated—“(7) The said fund has never had any connection with the parish school or the income of any teachers thereof, or the promotion in such school of any branch of education. It was originally raised by members of the congregation of the parish church for purposes distinct from any connection with the parish school, viz., the benefit of young children, particularly of the poorer class, and has always been so applied. The particular mode originally contemplated of benefitting that class by the erection of an infant school was never carried out, and was abandoned in 1865 on account of that need being sufficiently provided for otherwise. Since 1873 an infant school has been established and maintained in the parish under the provisions of the Education Act of 1872. Further, education is now free in all the branches usually taught to young children. (8) The petitioners consider that in these altered circumstances said fund may most usefully, and in accordance with the general object intended by the original contributors, be applied towards building Sunday school premises in connection with the parish church. The number of children in attendance at the Sunday school is large, and the want of accommodation is seriously felt by the petitioners. The petitioners could readily secure a suitable site for the erection of Sunday school premises, and are prepared, if the fund should not be sufficient to meet the whole cost, to raise the balance themselves.”

The School Board lodged answers, in which they asked that the fund should be transferred to them as the educational authority of the parish, and that it should be expended in paying off a debt upon the school premises, and in securing a more efficient staff in the infant department of the school.

On 20th June 1891 the Court made a remit to Mr George Gillespie, advocate, “to prepare a scheme for the administration and disposal of the fund in the hands of the petitioners as nearly as may be in accordance with the original purpose for which the fund was established.”

Mr Gillespie, after hearing parties, prepared the following scheme, which he reported to the Court;—“1. The fund referred to… shall continue to be held by the minister of the said parish in all time coming as trustee, under the provisions and with the powers of the Trusts Acts 1861 to 1884, the annual interest of the fund to be applied by him, after payment of any necessary expenses, as hereinafter provided. 2. The minister shall pay annually, at the close of the school financial year, the whole interest as aforesaid to the clerk of the School Board of Prestonpans, to be applied by the said board in increasing the efficiency of the teaching staff, either in respect of number or of the training and attainments of one or more of the teachers above what shall be at the time required of the said board by the provisions of the Education Code for Scotland. The minister shall only make payment as aforesaid on the production of a certificate from the Scotch Education Department or from Her Majesty's Inspector of Schools for the district that the condition above specified has been complied with. 3. Failing the production of such a certificate in any year, the minister shall apply the interest falling due that year in supplying clothing to poor children attending the infant department or the lower standards in any public or State-aided school in Prestonpans.”

In his report Mr Gillespie stated—“Various suggestions were made to me for the application of the money. The minister and Lady Susan Grant Suttie, who in a sense represents Lady Harriet

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Suttie, the principal founder of the charity, pressed strongly that the scheme suggested in the petition, viz., the erection of Sunday school premises in connection with the parish church, should be sanctioned. They explained that their plan was to build a church hall, to be used for Sunday school purposes, for other congregational purposes, and for a library, if funds could be raised to establish and carry it on. The building for these purposes would cost at least £1000, but the petitioners offered to undertake to raise the balance. At present the Sunday school is held in the church, which is not convenient for the purpose. They pleaded that this was a church fund, and that in devoting it to the purposes of a Sunday school they would not be deviating from the original purpose for which the fund was established, since education in an infant school at the time when the fund was established would not go much beyond instruction in the Bible and catechism. I report these contentions for the consideration of your Lordships, but I have to report that in my opinion this proposal is not sufficiently close to the original purpose to warrant your Lordships in sanctioning it, at least in the face of the other proposals which are made. The fund, as I take it, was established for general educational purposes, and for behoof of the whole parish, and its administration, so far as it has gone, has been on these lines. There is no trace of a limitation to Sunday school purposes, and I think that the suggestion that infant education forty years ago was limited to religious instruction is fanciful. It is said that the fact of the fund being left with the minister is proof that it was not intended for secular education. I do not assent to this. The minister had at that time a great deal to do with educational matters, and his own actings refute this assertion. The grants of clothing that have been made from time to time in accordance with Sir George Grant Suttie's directions have been made to enable children to attend the ordinary schools in the parish. To build or assist in building a hall for congregational purposes would be a departure from the original purposes, as I think, in two respects. It would not serve educational purposes, and instead of benefitting the parish generally, it would be confined mainly, if not altogether, to members of one congregation.

The second suggestion made by the petitioners to me, which does not appear in the petition, is that the minister should be directed to apply the interest of the fund in supplying the younger children of widows or poor families with clothing to enable them to attend school with regularity in winter weather. This is an excellent suggestion, and it is recommended by the consideration that in the parish of Prestonpans, where there are many fishermen and many colliers, cases frequently occur where widows are left in very poor circumstances with families to feed and clothe. But there is provision already in the parish for this purpose. The Governors of Schaw's Bequest have power to apply part of their revenue for this purpose, and have done so, but have never yet spent on this purpose the full sum they are entitled to spend on it….

The School Board, i.e., the majority of the School Board, suggest that the money should be spent in paying off pro tanto debt incurred by them in improving and extending their school premises. These extensions and improvements were incurred particularly with a view to obtaining better accommodation for the infant department, which is taught as a separate department. They plead that the money, if spent in this way, would be applied to the exact purpose contemplated by those who contributed it, for it would go to supply an infant school. The board borrowed a sum of £800 to pay for the extensions I have spoken of, and they complain of the burden of the rates, the school rate being at present 7d. per pound, which must immediately be increased to 9d. in consequence of this outlay.

I rather think, however, that it may be taken that the object which the contributors had in view, and the object which your Lordships will be disposed to sanction, must be one that will provide for the younger children in the parish some advantage which is not otherwise within their reach. The board are bound to provide adequate school accommodation, and they have done no more. This fund would therefore in a sense be thrown away if it was applied to relieve the ratepayers of the obligation which the law puts on them.

The last suggestion which is made, and it too comes from the majority of the School Board, is that the fund should be applied to secure a more efficient staff in the infant department than is at present maintained there. At present they employ a headmistress at £65, and three pupil teachers at £20, £17, 10s., and £12, 10s. a-year respectively, for an average attendance of 166 children. They say that for a salary of £30 to £35 they could secure, in place of the pupil teacher at £20, an ex-pupil teacher, i.e., a teacher who has had full training as a pupil teacher, and that this would much strengthen the infant department. They are under no obligation, according to the educational code, to do more than they are doing. I think that this suggestion is one of which the Court may approve as being good in itself and closely akin to the original purposes for which the fund was collected. I have drawn up a short scheme to give effect to it, using general terms, so as to give the School Board some latitude of action in the event of any change of circumstances.

It should be in the knowledge of your Lordships that the parish of Prestonpans is exceptionally well provided with educational funds devoted to higher branches of education, from Schaw's and Stiell's Foundations. Part of these Foundations is restricted to Prestonpans, and Prestonpans children are eligible to compete for the whole of them. Under the provisions of the 85th section of the Local Government

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Act of 1889 (52 and 53 Vict. c. 50) the sums available for general educational purposes in the parish will be increased, since till recently the endowments have been to some extent used in payment of fees. No arrangement has as yet, however, been sanctioned by the Education Department for the permanent application of the funds set free in consequence of the abolition of fees.

One point remains for consideration. The School Board claim that the fund should be transferred to them as the educational authority of the parish. This contention comes to this, that the minister has no title to hold and administer the fund, and never had such a title, but merely held the fund as a treasurer or banker bound to pay it over to the proper owner, beneficiary, or trustee when he should appear. I cannot take that view. I think, looking to what is known of the history of the fund, and the actings of the parties, that the minister holds this fund as a trustee for educational purposes. The Court can to a certain extent substitute kindred purposes for original trust purposes, and it can supply new machinery for trusts where the old has become unworkable or unsuitable to the times. But I humbly think the Court has no power to transfer the title to trust property from one individual to another, or from one public body to another, to substitute, e.g., school boards for kirk-sessions or town councils, in the administration of educational funds. That is a matter for legislation.

Even if the Court had the power, I venture to think that it would not be desirable to transfer the fund if your Lord-ships should approve of the scheme I have suggested. It is well to have some guarantee for the performance of the duty which the scheme lays on the board, and some summary method of keeping the board alive to its duty.

I think the minister, and not the session, should be recognised as the trustee of the fund. That seems to me to be the true position of matters at present.”

Prior to the consideration of this report by the Court, Lady Susan Grant Suttie lodged a minute stating that as the representative of Lady Harriet she desired that the fund should be devoted to the object suggested in the petition, “the erection of a hall in connection with the parish church, to which could be added a library, both religious and secular, for the benefit of the children.”

Argued for the petitioners—The scheme to be approved by the Court must as nearly as possible, considering the requirements of the time, consist with the original intention with which the fund had been established— Burnet's Trustees, November 17, 1876, 4 R. 127; Tudor on Charities, 136 and 146; Burnett v. St Andrew's Church, Brechin, June 12, 1888, 15 R. 723. Indeed, the interlocutor making the remit quite supported this view. But the scheme proposed by the reporter in the present case perverted the original objects of the founders. It deprived the minister and Kirk-Session of the control of the fund, and gave the spending of it to the School Board, who were not the proper recipients of a charitable bequest. The extra salary which it was proposed to give to the teaching staff ought to be met out of the rates. The scheme proposed by the petitioners, of erecting Sunday school premises, was much nearer the original intention of the contributors to the fund.

Argued for the respondents—The School Board had power under the 47th section of the Education Act 1872 to administer a bequest of this kind. There was no limitation of the fund to religious purposes originally—only to educational purposes—and all persons in the parish were interested. The proposal of the Kirk-Session involved the application of the money to a church purpose of a denominational character. It might be that the petitioners were entitled to have the administration of the fund, but the purposes to which it should be applied ought to be general educational purposes— M'Dougall, June 29, 1878, 5 R. 1014. The scheme suggested by the reporter ought to be approved.

At advising—