Scottish Court of Session Decisions

Lord Young and Lord Rutherfurd Clark Concurred.

Lord Trayner—The testator in this case directed his trustees, inter alia, “to pay and apply whatever residue and interest thereon may remain in their hands to such useful benevolent and charitable institutions as they in their discretion may think proper.” This direction, the pursuer maintains, is void through uncertainty, and if that contention were sustained the result would be that quoad the residue thus directed to be distributed according to the discretion of the trustees there would be intestacy. That is a result not easily to be arrived at, because the truster certainly did not intend that his estate or any part of it should be distributed according to the law of intestate succession, but intended it to go according to another rule, namely, the discretion and choice of his trustees. It may be, however, that a direction by a testator is so vague and uncertain as to be void, although the Court will be disposed, if it can, so to read the direction that it may have effect, rather than construe it so as to render it unavailing. It does not appear to me to be necessary in this case in order to sustain the direction in the will before us, to have recourse either to our general rules of construction, or to that tendency of our law to avoid intestacy where this can reasonably be done, for in my opinion the direction in question cannot be considered as void through uncertainty, when regard is had to a series of decisions already pronounced, and of authority, in our Courts.

The view of the direction in question which the pursuer presents is that there are three classes of institutions mentioned therein, to any one of which the trustees may give the benefit of the testator's bounty, namely, useful institutions, benevolent institutions, or charitable institutions; that while the two latter are sufficiently defined to sustain the direction, the first, “useful institutions,” to which according to his view the whole of the directed residue might be given, is too vague. I reserve my opinion upon the question whether a direction to trustees to give a portion of the trust estate under their charge to “useful institutions” would be void through uncertainty according to the law of Scotland. It is not necessary, in the view I take of this case, to consider or decide that question, for in my opinion the testator here did not direct anything to be given to merely “useful institutions.” I read his direction as one to his trustees to favour benevolent and charitable institutions, which are at the same time useful. The word “useful” is used to qualify both “benevolent” and “charitable.” In that view of the clause it is a matter of indifference whether the “and” is read as conjunctive or as equivalent to the disjunctive “or.” Now, if the clause can fairly be read as I propose to read it, the pursuer's argument fails. He does not dispute that a gift or direction to benefit a “useful benevolent institution,” or a “useful charitable institution,” would be valid. He argues against this construction, however, that it is employing two adjectives, the one to qualify the other; whereas in his reading of the clause “useful” is used to qualify the substantive, just as the other adjectives do. I think this, in any view, an extremely narrow ground on which to proceed with the result of frustrating the intention of a testator. But I find no difficulty in reading the two words as adjectives qualifying each other, as well as qualifying the substantive which follows, and I see that the same view about the use of double adjectives was taken by Mr Justice Pearson in the case of Sutton cited during the debate.

The pursuer relied very much upon the decision pronounced in Williams v. Kershaw, where it was held that a direction by a testator to trustees to apply the residue of his estate “for such benevolent, charitable, and religious purposes” as they should think right, was void through uncertainty. In that case the Master of the Rolls held, in construing the direction before him, that the intention of the testator was to leave his trustees a discretion in the choice of purposes which were benevolent or charitable or religious. So read, the deed gave the trustees the power of bestowing the whole of the truster's residue on objects which were, in their opinion, benevolent; and that being by the law of England void through uncertainty, the truster's residue was held to be undisposed of. The decision in that case was not cited as an authority in any way binding upon us, or as one which we ought to follow, and indeed it could not be so, for the law of Scotland recognises as sufficiently certain to be valid, a direction to trustees to distribute or bestow trust-estate on benevolent objects or purposes. The case was cited I understood chiefly as an instance where a learned judge had construed the language in a will as disjunctive, which apparently was conjunctive, and it was suggested that the same course should be followed here, so as to make the direction before us read as if the truster had directed his trustees to bestow his bounty on useful or benevolent or charitable institutions, and so to read the word “useful” as qualifying institutions, and as altogether independent of the terms benevolent and charitable. But even for this limited purpose I think the case of Williams does not help the pursuer. The terms there used were such as might lead, and in fact did lead, to the conclusion that they must be read as descriptive or designative of independent objects and purposes. “Benevolent” would scarcely be used as qualifying “charitable” and “benevolent and charitable” if read together as qualifying “religious” led to the result, as the Master of the Rolls said, that “every application must be to a religious purpose,” a construction which he rejected. But here there is no such difficulty to contend with—“useful benevolent and charitable institutions” are terms which may fairly, and I think in this case properly

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