Scottish Court of Session Decisions

Miss Mary Playfair died on 13th December 1897 leaving a trust-disposition and settlement dated 21st July 1894, by which she conveyed her whole means and estate, heritable and moveable, to trustees. The deed provided for payment of debts, &c., and of legacies to the Free Church of Scotland, the poor of Alyth, and certain individuals, and proceeded as follows;—“( Fourth) I give and commit to my trustees power to allocate and apply the residue of my whole estate, and pay the free proceeds of the same to such of my relations or other persons who in the opinion of my trustees may be entitled to participate therein, including in this bequest such legatees as are herein named by myself, and that according to the sole discretion of my trustees who shall alone be the judges.” The testator also left a codicil dated 5th November 1894, in which she gave certain directions relative to the bequest for the poor of Alyth, and made the following provision as to the residue of her estates:—“( Third) It was my sister Janet's wish that in the division of the residue of her estate, cousins, paternal and maternal, alive at her death should be called to participate, and that the children of deceased cousins should represent their parents. I accordingly enjoin on my trustees to keep this in view, and to exercise this direction as much as possible according to the option and discretion of my trustees in the division of my estate, keeping in view the other provisions above written with regard to the residue of my estate.”

Difficulties arose in regard to the division of the estate. Inter alia, Miss Anne Playfair, the sister and sole next-of-kin of the testatrix, considered that the clause in the settlement dealing with residue, as qualified by the codicil, was void by reason of uncertainty.

In these circumstances Miss Mary Playfair's trustees raised an action of multiplepoinding for the purpose of dividing the estate.

In this action the trustees lodged a claim in which they claimed that they were entitled to “apportion the residue of the whole trust estate in such shares as they in their discretion may appoint among persons to be selected by them from those falling within the classes intended to be benefited by the testatrix, viz. (1) relations of the said Mary Playfair, including her cousins, paternal and maternal, alive at the date of her death, and the children of deceased cousins, and (2) legatees mentioned in her will.”

Miss Anne Playfair lodged a claim maintaining that the trust-disposition and settlement and codicil in so far as they dealt with residue were void from uncertainty, and that she, as sole next-of-kin of the testator, was entitled to the residue of the trust estate. She claimed “to be ranked

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and preferred upon the fund in medio, to to the effect of receiving (1) payment or conveyance of the whole free residue of the trust estate.”

She pleaded—“(1) The residuary bequest in said trust-disposition and settlement and codicil being void from uncertainty, the claimant is entitled to be ranked and preferred in terms of the first head of her claim.”

On 1st December 1899 the Lord Ordinary ( Low) pronounced an interlocutor finding”(3) that the directions in the said trust-disposition and settlement for the disposal of the residue of the estate of Miss Mary Playfair are not void from uncertainty, but that upon a sound construction thereof the trustees, acting under the said trust-disposition and settlement, are empowered to divide the said residue among such of the relations of the said Miss Mary Playfair and the legatees named in the said trust-disposition and settlement, and in such proportions as the said trustees may think fit: Therefore … ranks and prefers the claimants William Japp and Janies Thomas Japp, the surviving and accepting trustees of Miss Mary Playfair acting under the said trust-disposition and settlement, to the whole remainder of the trust estate now hereinbefore disposed of, to be applied by them in terms of the said trust-disposition and settlement: Repels the claims for all the claimants except in so far as the same have been sustained by the foregoing decrees of ranking, and decerns,” &c.

Opinion.— … “The only other question is in regard to the bequest of residue in the settlement, which it is contended is void from uncertainty. That question depends upon the meaning to be ascribed to the words ‘other persons’ in the clause, and it is not disputed that if these words mean any persons to whom the trustees might choose to give a share of the residue the bequest is void, while if the words mean other persons of a defined class the bequest is good.

The clause is extremely badly framed, but I am of opinion that the fair reading of it is that the trustees are given power to allocate the residue among the relatives of the testatrix and her legatees, and no-one else. I come to that conclusion because the ‘other persons’ are described as those ‘who in the option of my trustees may be entitled to participate therein,’ and the only persons except relatives who are given any title to participate in the residue are the legatees.

I am therefore of opinion that the residuary clause is not void from uncertainty.” …

The claimant Miss Anne Playfair reclaimed, and argued—On a sound construction of the deed the trustees would not be in breach of trust if they gave the residue to anyone they pleased. They had an absolute discretion to select anyone they choosed. The bequest was therefore void from uncertainty— Sutherland's Trustees v. Sutherland's Trustee, July 6, 1893, 20 R. 925; Anderson v. Smoke, January 27, 1898, 25 R. 493. Bequests to charities were always regarded favourably, and such bequests implied the selection of a well-defined object by the testator— Robbie's Judicial Factor v. Macrae, February 4, 1893, 20 R. 358, opinion of Lord M'Laren 361; Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638. All the cases referred to on the other side had reference to charitable bequests. But here the bequest was not to charities; it was absolutely general and indefinite. The Lord Ordinary's reading of the clause was in conflict with the words used, and he argued in a vicious circle.

Argued for claimants, Miss Mary Playfair's trustees—The testator had indicated the class of objects he meant to favour, and even if the clause were read in its widest sense, the discretion given to the trustees was not wider than that given in other wills, which had been held to be good—M'Laren on Wills, ii. 772; Kelland v. Douglas, November, 28, 1863, 2 Macph. 150, opinion of Lord Cowan, 164; Crichton v. Grierson, July 25, 1828, 3 W. & S. 329. It was a question of construction, and the Lord Ordinary's reading was a reasonable and possible one, and the bequest should get the benefit of the doubt. It was the duty of the Court to follow, if possible, a construction that would give effect to the wishes of the testator. It being assumed that a bequest to “other people” was too wide, the bequest was qualified sufficiently to show that “other people” meant “legatees.” Even if the deed was held vague, there was a recommendation in the codicil which was a direction to the trustees, and which they were bound to follow— Miller v. Black's Trustees, July 14, 1837, 2 S. & M. 866. Even if it were assumed that this bequest as a whole was too wide, the whole bequest should not be set aside. That would be against the law interpreting wills as distinguished from contracts. The directions as regards the wider class, “other people,” might not receive effect, but the choice by the trustees of persons within the class named and favoured would still be good.

At advising—