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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Watt and Others, Petitioners [1895] ScotLR 33_19 (23 October 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0019.html
Cite as: [1895] SLR 33_19, [1895] ScotLR 33_19
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
Facts:
A testator by trust-disposition and settlement, dated 1879, left a sum of £3500 to be held in trust by the minister and kirk-session of a church for the purpose of applying the free income in maintaining a male missionary of not less than fifty years of age, and a female missionary of not less than forty years of age. In 1895, when the sum fell to be paid, the minister and kirksession, before accepting the trust, presented a petition to the Court to have the scheme altered to the effect of authorising them to expend £1000 in the erection of a mission-hall, and to use the income of the residue of the bequest in maintaining one male missionary without restriction as to age. The church had no mission-hall, and the income of the capital was, in the petitioners' view, insufficient for the payment of two suitable missionaries. They further stated that their acceptance of the trust would depend upon the petition being granted.
Held that the petitioners, not having accepted the trust, had no title to sue, and that the petition was incompetent.
Opinion that, apart from the question of competency, no sufficient reasons had been stated for sanctioning such a departure from the scheme laid down by the testator as was proposed.
The late William Hunter, merchant, South Bridge, Edinburgh, who died on 26th July
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1879, left a trust-disposition and settlement, which by the fourth codicil thereof, dated 22nd July 1879, made the following provision—“I direct that the sum of Three thousand five hundred pounds shall be paid over to the minister and kirk-session for the time of the Infirmary Street (Edinburgh) congregation of the United Presbyterian Church, and shall be held by them in all time coming in trust for the purpose of paying and applying the free income and annual proceeds thereof in maintaining a male missionary and a female missionary in connection with the said congregation, and with the beneficiaries of the old men's fund mentioned in my said trust-disposition and settlement when constituted: And I declare that the male missionary for the time shall not be less than fifty years of age, that the female one shall not be less than forty years of age, and that both shall be God-fearing persons well qualified for the offices, and who will apply their whole time to their duties and have no other employment ; and both missionaries shall be elected and appointed annually by the said minister and kirk-session for the time, who shall have power in their management of the said sum of Three thousand five hundred pounds from time to time to make such regulations and conditions in regard thereto, and in regard to the duties and conduct of the said missionaries, as to the said minister and kirk—session shall seem proper.” This legacy fell to be paid in 1895, and amounted, less legacy-duty, to £3150. The Rev. Pollok Watt, then minister of Infirmary Street U.P. Church, and the members of the kirk-session thereof, before accepting the administration of the trust, presented a petition praying the First Division of the Court of Session to settle a somewhat modified scheme. The petition contained the following statements:—“During the sixteen years that have elapsed since the death of the truster great changes in the mission work of the said congregation have taken place, and the conditions attached to the said bequest by the truster are such as to render it impossible to carry out his intentions in strict obedience in detail to his directions.
“During his life, and while the said William Hunter was connected with the said congregation, the congregation rented mission premises, and regularly employed a missionary ; but owing to changes in the district in which their church is situated and other circumstances, the congregation has not for many years been in possession of a mission-hall, and has not employed a missionary. A mission-hall is essential to the successful prosecution of mission work, and there is no present prospect of such being provided by the congregation.
The income derived from the said sum of £3150 will not be sufficient to support two missionaries, as, having regard to the present return for trust-moneys, it can hardly exceed £100 a-year.
The limit of age and certain other of the conditions imposed by the truster will also make it extremely difficult for the congregation to obtain the services of suitable missionaries.
The petitioners have maturely considered the terms of the above bequest, and they have been compelled to come to the conclusion that they could not, in the circumstances above narrated, carry it out according to the letter of the truster's directions. They are advised that the said sum of £3150 falls to be administered by them as under a trust for the due application thereof, and that your Lordships, in virtue of the equitable powers belonging to the Court at common law for the regulation of trusts, have power to settle a scheme for the administration of the said fund within the scope of the bequest.
The petitioners have accordingly prepared a draft scheme for the administration of the said fund, which they respectfully submit for the approval of your Lordships. The draft scheme modifies the terms of the said bequest in respect that it, inter alia, confers powers on the trustees (1) to provide a mission-hall in the first instance; (2) to employ one male missionary only; (3) to regulate the conditions of the tenure of office of the missionaries to be appointed.”
In their scheme the petitioners proposed to devote £1000 at once to the erection of a mission hall or to accumulate the income until it amounted to that sum. They also wanted the age limit removed,
Upon 6th July 1895 the Court remitted to Mr Bremner P. Lee, advocate, to consider and report upon the petition. Mr Lee, after referring to the provisions of Mr Hunter's trust-disposition under which an Old Men's Fund may come to be established, reported, inter alia—“I think that the terms of the bequest leave it not doubtful that Mr Hunter meant to provide for missionary work quite unconnected with, or at least not necessarily requiring, any missionary premises at all. The missionaries were to be in connection not only with the congregation, but also with the Old Men's Fund, and therefore a great part of their labours was to be among indigent annuitants chosen on consideration of age, ‘inability to work for maintenance, delicate health, &c.’ This seems consistent with, and even to indicate, an intention to provide for visitation in the home rather than any other form of missionary work. In any event, I think that the testator meant that any premises which might be necessary should be supplied as formerly by other means, and not at the expense of one of the two classes which he meant to benefit.… Since the death of Mr Hunter sixteen or seventeen years ago, trust-money yields a much smaller income than it did formerly, and while the sum left might at one time have been sufficient to pay both a male and a female missionary, it would not now yield more than would pay the male missionary alone.… This congregation, which is in the Cowgate district, has of late years had to discontinue its missionary work on account of its inability to provide mission premises, without which useful work in the district seems impossible. The church itself cannot be made available, as
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the mission work would be carried on amongst the very lowest classes of the population, and the regular congregation would naturally dislike, on sanitary and other grounds, that the church should be used for this purpose. So firmly do the petitioners hold this view that they are convinced that without some modification of the testator's directions, it will be their duty to refuse to accept the legacy at all. In these circumstances it seems that Mr Hunter's object may be best promoted, without any violation of his expressed wishes, by allowing the petitioners while they are unable to usefully spend the income, to accumulate it until they are able to provide the essential premises. At the same time, until the pettiioners are in possession of the money, I doubt whether they have any title to petition the Court for a scheme.” Counsel for the petitioners admitted that there was no authority for trustees not yet vested in the administration of a trust presenting a petition such as the present, but argued that there was no reason against their doing so. This was not a merely speculative question. They were anxious to accept and to administer this fund but felt they could not conscientiously do so if they were to carry out the directions of the testator literally. Their only course was to present to the Court for approval the scheme which they thought feasible in the altered circumstances of the case. Although the truster had not been dead twenty years, the condition of the congregation in which he was interested had greatly changed. There were fewer people in the neighbourhood attending the church able to assist in keeping up mission work. A hall had existed in the truster's lifetime, and was a necessity for such work. The age limit was unreasonable, for missionaries of that age were either incompetent or would require a much higher salary.
At advising—
Lord President—In anything which I have to say adverse to the position taken up by the petitioners, I do not intend to reflect on the motives which actuated them in presenting this application. One can see from what has been said by Mr Johnston that it is really their anxiety and scrupulousness for the success of the mission that have led them to adopt a position which we cannot sustain.
In the first place, I have grave doubt as to the competency or appropriateness of an application to settle a scheme for the administration of a trust framed by persons nominated to be trustees, but who have not accepted the trust, and who, although nominated to the trust, say that as at present advised they are not minded to accept unless the scheme which they propose is sanctioned.
I have not heard any sufficient reason, nor am I aware of any precedent for such a proceeding, in which the Court would interfere upon the application of persons occupying a perfectly irresponsible and tentative position, and without having before it any one committed to the execution of the trust. Accordingly, we have no guarantee for further procedure at all, but are asked to give effect to the no doubt honest but somewhat speculative criticisms and proposals of outsiders.
But further, this testator died only in 1879, and all that is said is, that external circumstances have so changed as to render his proposals less appropriate to 1895 than to 1879. These changes are mainly the inability of the congregation now to rent a mission-hall as they formerly did, and a fall in the rate of interest, which has rendered the fund less adequate for the purposes intended by the truster. Given due consideration to these circumstances, I am driven back to the question, what right have we to alter Mr Hunter's will made so recently as 1879. Is it because its provisions have become impracticable? Now, the present petitioners, viz., the minister and session of this church, are entitled to have their opinions treated with great respect, for in a sense they may be regarded as experts in the mode of conducting mission work. But I am not prepared to accept the statement even from them that with a sum of £3000 they would be unable to get missionaries to carry on the work—at least in a humble way—intended by the testator. It may be that if one had to write the will now, it would be better to provide for only one missionary and supply him with a mission-room or hall for carrying on his work. But that is not our business, nor is it that of the trustees, but of Mr Hunter, who may have had more modest and less ambitious ideas on the subject, and thought that if two middle-aged persons were selected to visit from house to house, a great deal of unostentatious and homely work might be done with this money.
It seems to me that we are not entitled to sanction a scheme of this kind, the central object of which is the acquisition of a mission hall, which would absorb one-third of the whole fund and at once cripple the objects which Mr Hunter had in view. I am not prepared to take that step. I do not think we have heard any adequate reasons for interfering with the terms of this bequest, least of all at the instance of persons who stand aloof from its execution. The sequel will depend on the reasonable and well-considered opinion which the trust-disponees will now come to form as to their own course of action; for I cannot suppose that, because their views of the ideal apparatus of mission work do not coincide with Mr Hunter's directions, they will sacrifice this charity altogether.
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I also agree that if we were to consider the merits, there would be the greatest difficulty in sanctioning such a variation from the testator's purposes as would be entailed in the expending one-third of the whole fund in the erection of a mission-hall when nothing was contemplated by the testator but out-door work.
The Court refused the petition as incompetent.
Counsel for the Petitioners— H. Johnston— C. D. Murray. Agents— Morton, Smart, & Macdonald, W.S.