Scottish Court of Session Decisions

James Moffat died on 16th February 1884, leaving a trust-disposition and settlement, dated 24th September 1870, by which he disponed his whole estate, heritable and moveable, to certain trustees for the payment of the legacies and bequests therein set forth.

By the said settlement the testator, inter alia, on the narrative that he had for some time past determined to found an institution “for the education and upbringing of orphan children of the age after mentioned, belonging to or resident in the Lower Ward of Renfrewshire, and who are not chargeable to the parochial board,” directed and appointed his trustees to make over to and in favour of the Provost and Bailies of Port-Glasgow, the Provost and Senior Bailie of Greenock, and the Sheriff-Substitute of the Lower Ward of Renfrewshire, and their successors in their respective offices for the time being, as trustees, to be known as the Trustees of Carnegie Park Orphanage, All and Whole his lands and estate of Carnegie Park, and also the whole residue and remainder of his other means and estate,

Page: 490↓

in perpetual trust, subject, inter alia, to the following conditions—“ Primo. The said trustees of Carnegie Park Orphanage shall hold the said lands and estate of Carnegie Park … and shall accumulate the annual proceeds until the free amount thereof shall, along with the said residue and remainder of my other heritable and moveable, real and personal estate, and the proceeds thereof, amount to the sum of £6000 sterling. Tertio. The said trustees of Carnegie Park Orphanage shall, as soon as they conveniently can, after having accumulated the said sum of £6000, cause to be erected on a portion of the upper part of the said estate of Carnegie Park such homes or buildings, of a plain substantial character, and free from ostentation, not exceeding in cost the value of £2000 (unless it shall be afterwards found necessary to extend them), and to be called the ‘Carnegie Park Orphanage,’ as shall in their opinion be sufficient to accomodate such a number of male and female orphan children between the ages of eight and fourteen years, as the said trustees of the Carnegie Park Orphanage shall consider the free yearly proceeds of the fund under this trust capable of maintaining; and from and after the erection of such orphanage the said trustees of Carnegie Park Orphanage shall apply the free annual proceeds of the balance of the said accumulated fund, and of the said lands and estate of Carnegie Park, or the sum or sums realised for the same, or any part thereof, towards the boarding, clothing, lodging, and educating the said orphans as hereby directed. Quarto. The orphans to be admitted shall be natives of or residents for the period of not less than twelve calendar months in the Lower Ward of Renfrewshire previous to their application for admission, who have not been chargeable on any parochial board, whose parents were Protestants, and who have been brought up as such, and who shall also, when admitted, be free from any cutaneous disease, or any other complaint which might tend to imperil the health of the other orphans, and such orphans shall not be admitted under eight years of age, and shall not be allowed to remain in the orphanage after they have attained fourteen years of age.” In the fifth place the testator gave certain directions as to the education of the orphans admitted to the homes.

On 23rd February 1892 the Trustees of Carnegie Park Orphanage presented a petition to the Court, in which they made the following statements—“On the death of Mr Moffat, his testamentary trustees administered the estate and made over to the petitioners the lands of Carnegie Park and the residue of the testator's effects. The residue was found to exceed largely the sum of £6000 mentioned by the testator, the total value of the residue, together with the lands of Carnegie Park, being estimated at over £40,000. The funds at the disposal of the trustees were much larger than the testator had contemplated, and were amply sufficient for the support of a large number of orphans. The trustees accordingly erected two Cottage Homes, one to contain about thirty orphan boys and the other the same number of orphan girls. They also built a separate building containing an hospital and other accommodation for the institution, all on the Carnegie Park estate. The present income of the trust is about £1250, and the expenditure last year was about £800. The homes were opened for the reception of orphans in January 1889, and every means taken of making known to the public the advantages of the institution, particularly in the Lower Ward of Renfrewshire to which the bequest specially applied. The trustees sent a circular calling special attention to the institution, along with a small book containing the terms and conditions for admission of orphans as stated in said trust-deed to all the Protestant clergymen having charges in the Lower Ward of Renfrewshire, and also to all the medical men and public officials, in the various parishes in the said district, inviting their co-operation and assistance in sending orphans to the institution. At the opening of the institution and on several occasions since, the local newspapers also have given full publicity to the purposes of the institution. Notwithstanding the publicity thus given to the objects of the institution, the accommodation of the homes and the resources of the trust have not been taken advantage of to anything like the full extent. The number of orphan boys admitted since the opening of the homes is only thirteen, and the number of orphan girls six. There are at present only ten boys and five girls in the homes. The homes are capable of accommodating about sixty boys and girls, and as the fixed expenses are nearly the same whether the homes are fully occupied or not, a largely increased number of children could be supported with the present income. The petitioners are satisfied that the present position of the charity is largely due to the fact that they are not entitled to receive orphans under the age of eight, or those who have been chargeable to any parochial board. It is found that in many cases where the relatives of orphan children have taken charge of them until they are eight years of age they are unwilling to allow them to enter the institution. Also, where children are left orphans under the age of eight they very generally become objects of parochial relief and thereby become ineligible for the benefits of the institution. The age limit has thus been found to lead to the breaking up of families, which the friends and relatives are unwilling to do, and to the entire exclusion of the younger members from the benefits of the charity. The trustees have experienced the further difficulty in connection with the age of admission being fixed at so high a limit, viz., that the children in many cases having been neglected in their infancy have formed objectionable habits of which it is very difficult to cure them, and which are apt to be communicated to the other children in the homes. The petitioners are of

Page: 491↓

opinion that were the age of admission reduced so that children of five years and upwards would be eligible for admission, the trustees at all times giving a preference to orphans of eight years of age and upwards, so long as they can be found in such numbers as to fill the homes, the institution would be much more largely taken advantage of, and the aims and wishes of the testator still efficiently carried out.”

The petitioners therefore craved the Court “to reduce the limit of age of orphans for admission to said institution from eight years to five years, and to authorise the trustees to receive into said institution children of the age of five years and upwards, the trustees at all times giving a preference to children of the age of eight years and upwards in the event of children of the latter age being found in sufficient numbers to fill said institution.”

The petitioners referred to the following authorities— University of Aberdeen, v. Irvine, July 20, 1869, 7 Macph. 1087; M'Dougall, July 29, 1878, 5 R. 1014.

At advising—