Scottish Court of Session Decisions

Upon 8th July 1861 Misses Margaret, Jane, and Elizabeth Buchanan, of Bellfield, in the parish of Riccarton and county of Ayr, executed a trust-deed in order to regulate the disposal of the heritable and moveable estate which might come to be vested in the survivor of them after the death of such survivor. Miss Elizabeth Buchanan was survivor of the said ladies. In exercise of powers of revocation and alteration reserved to her by the said trust-deed, Miss Elizabeth Buchanan executed a codicil thereto, dated 11th May 1871, whereby she altered in certain respects the provisions of the trust-deed.

By the third purpose of the said codicil Miss Elizabeth Buchanan stated that it was her will and desire that the whole lands and heritages thereinafter specified (the lands and estate of Bellfield) should be devoted in all time coming to certain uses and purposes therein set forth, and that the trust in connection therewith should be called “The Buchanan Bequest.” She therefore ordained and appointed her trustees to hold the said lands for the period of ten years from and after the first term of Whitsunday or Martinmas occurring six months after her death, and to apply the annual rents and proceeds thereof, and the rents or lordships which might be derived from coals or minerals, for the purposes therein set forth.

On the lapse of said period of ten years, the testatrix ordained and directed her trustees to dispone, assign, and make over the whole of said lands, heritages, and others, and all and whatever accumulations of rents and others which might then be in

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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 her trustees themselves during their lives as trustees in trust, to the end that they might hold the same in all time coming for the execution of the several purposes after—mentioned of the Buchanan Bequest; and she appointed and directed the trustees of the Buchanan Bequest to pay and apply the whole annual revenue and income to be derived from the said lands and heritages, and from the capital funds of the Buchanan Bequest, and to and for the purposes following: —(1) For payment of the costs and charges of administration and management; (2) for continuing the payment of the respective annual sums thereinbefore directed to be paid by her trustees, viz., £5 to the Ragged School of Kilmarnock, £3 to the Kilmarnock Fever Hospital and Infirmary, £10 to the minister of the parish of Riccarton, and £130 to a missionary for said parish; (3) for payment of the annual expenditure connected with the library of the Buchanan Bequest; (4) for payment of the annual expenditure for maintaining the policies and garden of Bellfield House as a place of recreation for the public of Kilmarnock and Riccarton; (5) for payment of the expenses connected with an asylum in the event of the same having been formed; (6) “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 23rd April 1875, and her trustees for ten years administered her estate as directed in the codicil. Thereafter they made over the trust estate to the Provost and Magistrates of Kilmarnock, the ministers of the Established Churches of Scotland in Kilmarnock ( vide 14 R. 284), the minister of the parish of Riccarton, and to themselves, as trustees for carrying out the objects of the trust; and in accordance with a direction in the codicil, the trustees of the Buchanan Bequest obtained a Royal Charter incorporating themselves under the title of “The Trustees of the Buchanan Bequest.”

Thereafter a question arose between the Buchanan Bequest trustees and the Church of Scotland ministers of Kilmarnock and Riccarton as to the meaning of the sixth purpose of the codicil. The trustees maintained that the ministers were bound to submit to them accounts showing how the balance or residue of the revenue paid to them in terms of that purpose had been applied, and mentioning the names of the recipients, with the amount given to each in cash, goods, or clothing. The ministers maintained that the trustees were not entitled to such accounts. The balance or residue of the revenue paid to and expended by the ministers amounted to about £220 per annum.

For the decision of this question a special case was presented by (1) the trustees and (2) the ministers.

The questions of law were—“(1) Are the second parties and their successors in office bound annually to render to the first parties accounts showing how the money paid to the second parties by the first parties, from the income of the Buchanan Bequest, to be expended on charitable and benevolent purposes connected with the parishes of Kilmarnock and Riccarton, has been applied, mentioning the names of the recipients, with the amounts given to each in cash, goods, or clothing? or (2) Are the second parties and their successors in office bound annually to render to the first parties any, and if so what, accounts of the disposal of the said money?”

Argued for the first parties—They were entitled to receive such an account in the form desired by them or an account in such other form and giving such particulars as the Court might determine. The import of the provision in Miss Buchanan's codicil was to the effect that certain specified members of the body of trustees would undertake a particular department of the trust administration, and such trustees were not thereby exonerated from the ordinary duty incumbent on trustees to preserve and exhibit to their co-trustees accounts of their administration—in no way to be made public.

Argued for the second parties—The legacy being expressly bequeathed to the parishes of Kilmarnock and Riccarton, and it being expressly provided that the residue was to be paid to and expended by the ministers of these parishes, it was as ministers of their respective parishes and not as trustees of the Buchanan Bequest that they were entitled to intromit with the respective shares of residue falling to be paid to them, and they were not bound to give, and the first parties were not entitled to demand, such an account, or any account. The duties imposed upon the trustees of the Buchanan Bequest by the said codicil ended with the payment to the second parties, and to give effect to the contention of the first parties would be to defeat the purposes of the trust, and to render it impossible for the second parties properly to carry out the intention of the truster. The parties who chiefly benefited, and those whom the truster desired to benefit, were needy and deserving persons, and in so far as the money was distributed to persons, the most deserving would decline to receive the benefit if their names were disclosed as being the recipients of charity, and the consequence would be that the benefits of the bequest would go to less deserving persons — Turbyne v. Kirk-Session of Leuchars, October 15, 1875, 3 R. 10.

At advising—