Scottish Court of Session Decisions

Lord M'Laren—I concur with your Lordships. It is necessary carefully to distinguish between the statutory powers conferred upon the Court under the Endowments Commission and the powers of the Court under its ordinary jurisdiction. I only know of two cases for the exercise by the Court of its common law powers. One is where the founder of a charity or other endowment only expresses his purpose in general terms, and where it is thus necessary to have a scheme for its administration. The other is where the object of a charitable trust has failed; where this has happened the Court has on rare occasions sanctioned the application of the funds to objects nearly resembling those selected by the truster. In the latter case I doubt if a petition is the appropriate mode of invoking the jurisdiction of the Court. I rather think some declaratory process would be necessary.

The present case does not, however, fall under either of these categories. What is proposed is not merely an administrative variation. It is proposed to admit women to the benefit of an endowment expressly given to men, and given by a member of a profession not very friendly to the admission of women within its ranks. Nor can it be said that the admission of women is necessary for administration, because the only result of refusing the application would be to accumulate the funds and add to the capital until a candidate comes forward falling within the class benefited by the trust as it stands. That would not be in any way inconsistent with the testator's object. For these reasons I think the application should be refused.

Lord Kinnear—I agree. I think we should be straining the powers of the Court in the administration of charitable bequests unreasonably if we were to comply with the petitioners' demand, because what we are asked to do is to extend the benefit of a recent bequest to persons who are not the object of the testator's bounty. I also agree with the view indicated by Lord M'Laren, that if this application were presented on the footing that this bequest had become practically unworkable owing to a change in the circumstances that would raise an entirely different question. I do not say that we should have solved it in the manner proposed in this petition, but the question would have been entirely different. But nothing of that kind is said. Even if we assume that candidates do not come forward on every occasion on which this bursary is vacant, it does not follow that the testator's bequest is not being worked in the most suitable and convenient way. It is the case with many bursaries that from time to time suitable candidates fail to present themselves; but the remedy is that the funds are administered in the meantime by the University in accordance with statutory regulations for the purpose intended by the founder of the bursary. The ground averred here is not even that candidates do not come forward; all that is said is that the trustees experience difficulty in getting male candidates for the bursary, and as the medical degree is now open to women it is expedient that the bursary should also be open to them. I cannot read that as an averment that the trustees find it impossible to carry out the testator's wishes as expressed in his settlement. It is simply the expression of their opinion on a general question that since medical degrees are now open to women medical bursaries ought to be open to them also, although they may have been intended by the founder for young men only. That may or may not be reasonable, but it is not a ground on which we interfere with a testator's directions. I therefore agree with your Lordships that the petition should be dismissed.