Scottish Court of Session Decisions

William Lyon, artist, Kirkintilloch, died on 20th March 1892 leaving a trust-disposition and settlement dated 27th October 1885, with relative codicils dated 24th January 1890 and 25th January 1892, under which he made over his whole means and estate to certain trustees.

In the fourth purpose of his trust-disposition and settlement the testator directed his trustees “to set aside and invest in their names the sum of £3500 sterling, or whatever less sum my estate may consist of, after carrying into effect the above directions; and after dividing such sum into thirty-five equal shares, to hold the same under the name of ‘Lyon's Mortification’ for behoof of the following persons, churches, institutions, societies, or schemes in the proportions following, paying over half-yearly at Whitsunday or Martinmas the income of the respective shares (after deducting the expenses of management) to the treasurers, secretaries, managers, or others of the said several churches, institutions, societies, or schemes:—( First) For behoof of the minister of the said United Original Secession Church, Kirkintilloch, eight shares of said mortification, the income thereof to be paid to himself towards his remuneration; ( Secondly) for behoof of the schemes of the Synod of the United Original Secession Church in Scotland five shares of said mortification, the income thereof to be paid to the treasurer of said Synod, and apportioned by the Synod annually among the several schemes of said church as they may think most meet and advisable: Declaring that should the United Original Secession Church in Scotland at any future time unite with some other branch of the Christian Church, the income of said five shares shall be paid to the Treasurer of the Synod or supreme managing body, by whatever name called, of the united churches, to be applied for the benefit of the schemes of the united churches, the apportionment to be made annually by the said Synod or other supreme managing body; ( Thirdly) For behoof of the minister and kirk-session of the said United Original Secession Church in Laurieston, Glasgow, three shares of said mortification, the income thereof to be applied towards the funds of said church; ( Fourthly) For behoof of the minister and kirk-session of the said United Original Secession Church in Bridgeton, Glasgow, three shares of said mortification, the income thereof to be applied towards the funds of said church; ( Fifthly) For behoof of the minister and kirk-session of the said United Original Secession Church in Kirkintilloch, one share of said mortification, the income thereof to be applied towards

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the funds of said church… . And with regard to the shares the income of which is destined to the minister of the said United Original Secession Church, Kirkintilloch, and for behoof of the said United Original Secession Churches in Laurieston and Bridgeton, Glasgow, and in Kirkintilloch, I direct my trustees that should any of such churches cease to exist as a separate congregation and unite as a church with some other church, the income of the shares destined to the minister of such church, or for behoof of the funds thereof, as the case may be, shall be applied by my trustees for behoof of the funds of the united churches, or should any of the above-mentioned churches be dissolved without uniting as a church with any other church, such income shall be applied by my trustees for behoof of such of the other churches above mentioned as may have continued in existence, in such proportions as my trustees may think best, and should all the above-mentioned churches be dissolved without uniting as churches with any other church, then such income be paid over by my trustees to the treasurer of the Synod of the said United Original Secession Church in Scotland, or in the event of their union with any other branch of the Church, to the treasurer of the Synod or supreme managing body of such Church, to be annually apportioned among the Schemes of said United Original Secession Church or the united churches, as the case may be, in the same manner as the five shares of said mortification above destined to the schemes of such Synod.”

The testator during his life was a member and office-bearer of the United Original Secession Church at Kirkintilloch.

The Glasgow Presbytery of the United Original Secession Church consists of seven churches, three being the said churches in Kirkintilloch and Laurieston and Bridgeton, Glasgow, one in Main Street, Glasgow, one in Pollokshaws, one in Paisley, and one at Shottsburn, near Holytown, about ten miles from Glasgow. All the churches were in existence at the date of the testator's settlement, and still continue.

In the beginning of 1902 the Kirkintilloch congregation consisted of 223 members and 82 adherents, and the minister was the Rev. George R. Aitken. At a meeting of the Glasgow Presbytery of the said United Original Secession Church held in Glasgow on 7th January 1902 the Rev. Mr Aitken tendered his resignation of the pastoral charge of the Kirkintilloch congregation, on the ground, as stated in the minutes of meeting, of his being out of sympathy with the position and growing tendency of the Original Secession Church. He further explained, according to the minutes, that there was no principle of the church to which he was actually hostile, but that he found himself growingly indifferent to the cause of the Covenanted Reformation for which the church appeared. The Presbytery agreed that Mr Aitken's resignation should lie on the table for a month. Thereafter conferences were held between the members of the Presbytery and the Kirkintilloch Session and congregation and Mr Aitken, which did not result in any alteration of the position. Accordingly, at a meeting of the same Presbytery, held in Glasgow on 11th February 1902, the Presbytery resolved to accept of the resignation of Mr Aitken, and declared the pastoral tie between him and the Kirkintilloch congregation dissolved from and after the 24th day of said month of February. Further, they declared that from that date Mr Aitken ceased his connection as a minister and member with the United Original Secession Church. At the same meeting of Presbytery the moderator was appointed to preach at Kirkintilloch on the first Sabbath of March, and at the close of public worship to declare the congregation vacant.

On 20th February 1902 the Kirkintilloch congregation met, after the usual notice, and by a majority of 64 to 10 decided to petition the United Free Presbytery of Glasgow for admission as a congregation of the United Free Church. The minority entered no protest against this decision.

The Glasgow Presbytery of the United Original Seceders at a meeting held on 27th February 1902, having learned of the step taken by the Kirkintilloch congregation, cancelled the appointment to preach the church vacant, and immediately thereafter the Clerk of the Presbytery, in accordance with instructions from the Presbytery given at their said meeting, intimated to the Rev. Mr Aitken that the pastoral tie between him and the Kirkintilloch congregation was dissolved, and that he was no longer a minister or member of the United Original Secession Church, and also sent an excerpt of the minute of 27th February to the preses of the congregation to be submitted to the office-bearers and members of the congregation that they might know the relation in which Mr Aitken then stood to the congregation.

The majority of the Kirkintilloch congregation proceeded to carry out the decision of the meeting held on 20th February, and on 4th March thereafter presented a petition to the United Free Church Presbytery of Glasgow praying to be received as a congregation of the United Free Church of Scotland. This petition was signed by 157 members and 81 adherents of the Kirkintilloch congregation, and commissioners from that body supported the petition.

The minority of the Kirkintilloch congregation, after the lapse of one month, were called together by the Glasgow Presbytery of the United Original Secession Church, and thereafter continued for several weeks to meet for worship in the Temperance Hall, Kirkintilloch. They were invited by the said Presbytery to organise themselves as a small congregation in Kirkintilloch of the United Original Secession Church, but after several conferences were held the minority declared their inability to maintain the ordinances necessary for the purpose, and the proposal was abandoned.

The Glasgow Presbytery of the United

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Free Church appointed a committee to meet and confer with the petitioning members of the Kirkintilloch congregation, and a report having been made in favour of granting the petition, the Presbytery at their meeting on 1st April 1902 resolved to receive the petitioners as a congregation of the United Free Church, but to defer the formal reception till after the meeting of the General Assembly, in order that minister and congregation might be received at the same time. In May 1902 the said General Assembly sanctioned the admission of Mr Aitken as a minister of that body. Accordingly, at Kirkintilloch on 18th June following the Glasgow Presbytery of the United Free Church formally admitted the Rev. Mr Aitken to the status of a minister of the United Free Church, and also the congregation as a congregation of the United Free Church, the congregation to be thenceforth known as South Kirkintilloch. At the same time Mr Aitken signed the formula and was formally inducted to the pastorate of the congregation, and the reappointment was made of the former elders and managers.

The congregation, with the Rev. Mr Aitken as their minister, continue to use and occupy the church buildings used and occupied by them when a congregation of the United Original Secession Church, the property of such buildings being regarded by the minister and congregation as belonging to them, on the ground that the title was held for behoof of the congregation, and free from any condition of continuing in connection with the United Original Seceders.

Questions having arisen in these circumstances as to the parties having right to the income of the shares of the Lyon's mortification given to the minister and to the minister and kirk-session of the United Original Secession Church, Kirkintilloch, a special case, in which the foregoing facts were narrated, was presented to the Court.

The parties to the special case were (1) the testamentary trustees of the said William Lyon; (2) the minister and certain members of the United Original Secession Church, Bridgeton, Glasgow, and the minister and certain members of the United Original Secession Church, Laurieston, Glasgow; (3) the Rev. George Aitken, minister of the South Kirkintilloch United Free Church; and (4) the elders and managers of the South Kirkintilloch United, Free Church congregation, for and on behalf of said congregation.

The questions of law for the opinion of the Court were—“Does the income accruing on the shares of the Lyon's mortification given to the minister and to the minister and kirk-session of the United Original Secession Church of Kirkintilloch fall to be paid to the parties of the second part, in such proportions as the first parties think best? or, are the parties of the third and fourth part entitled thereto?”

The second parties maintained that the United Original Secession Church at Kirkintilloch had ceased to exist as a separate congregation, and had not united with some other church in the sense of the resolutive proviso at the end of the fourth purpose of the testator's settlement, but on the contrary had dissolved without uniting with any other church, and therefore claimed that the income of the shares in dispute fell to be paid to or for behoof of the United Original Secession churches in Laurieston and Bridgeton, Glasgow ( i.e., the second portion), in such proportions as the first parties thought best.

The third and fourth parties maintained that in referring to the junction of the church at Kirkintilloch with another church he used the word “church” in the sense of “congregation,” that the church at Kirkintilloch had not ceased to exist as a separate congregation nor united with any other congregation, nor had it been dissolved without uniting as a church with some other church within the meaning of the fourth purpose of the settlement, but had preserved its identity as a congregation in every way, although it had separated from the United Original Secession body and been received into another Presbyterian body, viz., the United Free Church. They claimed that the income of the shares in dispute should continue to be paid to them.

Argued for the second parties—Throughout the settlement the testator clearly favoured the Original Secession Church, and in purpose four of the settlement he intended to restrict the benefit of his bequest to that church and congregations belonging to it as long as it had a separate existence. He contemplated in the fourth purpose and provided for the “union” of that church with another “branch of the Christian Church.” What had happened here, however, was a defection of a certain number of members from the Original Secession Church, with the result that the Original Secession Church at Kirkintilloch had been dissolved. A large proportion of the former members of that church had gone over to the United Free Church, but they were not the church or congregation favoured by the testator.

Argued for the third and fourth parties—The testator, though he had a preference for the Original Secession Church, did not confine his benefactions to that church, and he contemplated that it might unite with another church. The testator used “church” with a secondary meaning, familiar in Scotland, viz., as denoting a body of worshippers meeting in a particular building with the same minister and office-bearers. The congregation was really the unit to which the bequest was made. This congregation had maintained its identity, meeting in the same building and having the same minister and office-bearers. It had never ceased to exist as a congregation, and though it did not now adhere to Original Secession principles, adherence to such principles was not an essential condition of its continuing to take benefit under the will. Therefore the resolutive proviso in purpose four of the settlement had not come into operation.