Scottish Court of Session Decisions

John Murdoch, who latterly resided at the Edinburgh Hydropathic Establishment, Craiglockhart, Mid-Lothian, died there unmarried on 8th December 1901, leaving a trust-disposition and settlement dated 17th July 1897, by which he assigned, disponed, and bequeathed his whole means and estate to and in favour of Peter Guthrie Tait, then Professor of Natural Philosophy in the University of Edinburgh (now deceased), Alexander Crum Brown, Professor of Chemistry in the said University, Janies Geikie, Professor of Geology in said University, and Thomas Hector Smith, manager of the National Bank of Scotland, Limited,

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in Edinburgh, and to the acceptors and acceptor of them, the major number acting and resident in Great Britain being always a quorum. He also appointed his trustees to be his executors, and on the death or resignation of any one of his trustees he directed the remaining trustees to assume a suitable person to act in his place.

The first three purposes of his settlement provided for payment of debts, legacies, annuities, &c. The fourth and only other purpose was in the following terms—“( Fourth) I direct my trustees to employ the whole residue of my said estate, means, and effects in instituting and carrying on a scheme for the relief of indigent bachelors and widowers, of whatever religious denomination or belief they may be, who have shown practical sympathy, either as amateurs or professionals, in the pursuits of science in any of its branches, whose lives have been characterised by sobriety, morality, and industry, and who are not less than fifty-five years of age, or of aiding any scheme which now exists or may be instituted by others for that purpose; and I confer on my trustees the fullest and most ample powers, both in regard to the selection of the persons who are to receive the benefit of the proposed scheme and the mode in which the scheme itself is to be carried out, and without in any way detracting from the powers hereby conferred on my trustees, I suggest that, they should, if they deem it expedient, purchase land situated within 10 miles of Edinburgh, of suitable extent, and erect thereon, furnish, and maintain an institution to be known by the name of ‘Murdoch's Rest,’ where such persons as are before mentioned might end their days in comfort; at the same time I am well satisfied that when such persons have kind and suitable friends willing to receive them they are better with them than gathered together in numbers; but in the event of my trustees deciding to adopt my suggestion as to an institution, I would recommend that the buildings to be so erected should be constructed after the cottage system, and of a substantial but not expensive character, and I would further recommend that my trustees should provide and pay for the board of each of the inmates in the before-mentioned institution at a cost of, if possible, not exceeding £36, 15s. per annum; and with reference to the selection of the persons who should benefit under the said scheme, in whatever way it may be carried out by my trustees, I would suggest that the first three persons should be either natives of or resident in the county of Edinburgh, and thereafter one person, whether a native or resident, should be chosen from each county in Scotland in alphabetical order, until such requisite number as my trustees may decide shall be reached, and on the death or removal from the benefit of the scheme of any person so chosen, that a person should be selected in his place from the county next in alphabetical order to that from which the last selection was made; and in the event of no eligible application being received by or on behalf of any person in a county in its order, that a person should be chosen from the county next in order, but that on the occurrence of the next vacancy a person should be chosen from such county from which no eligible application was received; and I would also recommend that my trustees should, in making elections to the benefit of the said scheme, consider with care and sympathy any application which may be recommended by the provost and magistrates of any Scotch burgh, and I declare that, notwithstanding any of the suggestions or recommendations herein contained, my trustees shall have the sole power of selecting a site for the before-mentioned institution, should they deem its erection advisable, and determining its style and extent and of selecting all applicants and removing at their discretion those admitted to the benefit of the said scheme.”

A question having arisen as to whether the above purpose was void from uncertainty, an action of multiplepoinding, in which the fund in medio was the residue of the estate, was raised by the trustees, in which claims were lodged by them and by the testator's next-of-kin.

The trustees claimed “to be ranked as preferred as trustees foresaid to the whole fund in medio, to be administered by them in terms of the directions contained in the fourth purpose of the trust-disposition and settlement of the said deceased John Murdoch;” and pleaded “The directions for disposal of residue contained in the fourth purpose of Mr Murdoch's settlement being valid and effectual, the claimants are entitled to be ranked and preferred in terms of their claim.”

The next-of-kin claimed—“(1) The claimants as the sole next-of-kin of the deceased John Murdoch claim to be ranked and preferred in equal shares to the whole residue of the trust-estate forming the fund in medio. (2) Alternatively, the claimants as next-of-kin foresaid claim to be ranked and preferred in equal shares to the surplus revenue on said residue which has accrued and which may hereafter accrue.” They pleaded—“(1) The claimants, as the sole next-of-kin of the deceased John Murdoch, are entitled to be ranked and preferred in terms of the first alternative claim, in respect that the directions as to the application of the residue contained in the fourth purpose of said trust settlement are vague and uncertain and of no effect in law, and that the said residue forms intestate succession of the truster. (2) Or otherwise, the claimants, as next-of-kin foresaid, are entitled to be ranked and preferred in terms of their second alternative claim, in respect that the said surplus revenue accrued, and which may hereafter accrue, forms intestate succession of the truster.”

On 2nd February 1906 the Lord Ordinary ( Johnston) pronounced an interlocutor finding that the bequest of residue contained in the fourth purpose was void from uncertainty and sustaining the claim for the next-of-kin.

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Opinion.—“The question at issue in this case between the trustees of the late John Murdoch and his next-of-kin is, whether the directions in the fourth or residue clause of his settlement are void from uncertainty. The question is important, as the residue of Mr Murdoch's estate amounts to a very considerable sum, and it has been ably argued.

“Mr Murdoch has directed his trustees to employ the whole residue of his estate ‘in instituting and carrying on a scheme for the relief of indigent bachelors and widowers, of whatever religious denomination or belief they may be, who have shown practical sympathy, either as amateurs or professionals, in the pursuits of science in any of its branches, whose lives have been characterised by sobriety, morality, and industry, and who are not less than fifty-five years of age, or of aiding any scheme which now exists or may be instituted by others for that purpose.’ Mr Murdoch further confers ample powers on his trustees both in regard to the selection of the persons to be benefited and the mode in which the scheme itself is to be carried out. But without in any way tying them down he suggests the establishment of an institution or home in the neighbourhood of Edinburgh where such indigent persons might be boarded, and he also suggests the selection of the individuals from the counties of Scotland in their turn. But I do not think that those ancillary directions affect the question. Its determination depends upon the passage I have quoted.

A great many cases have been before the Courts where analogous questions have been raised, both recently and in earlier times. But I do not think that I need examine them in detail. The following points appear to be well settled—“( First) The law does not allow a testator to delegate to others the making of a will for him, but ( Second) the law does allow a testator ‘to point out particular classes of persons and objects which are intended to be the object of his favour, and then to leave it to an individual or a body of individuals after his death to select out of those classes the particular individuals or the particular objects’ to whom his bounty is to be applied ( Crichton's case, 3 W. & S. at 338). ( Third) Though a general bequest for charitable purposes is in its conception sufficiently general and vague, still, from a natural inclination to favour charity, the Court has by a series of decisions determined that such a bequest is to be sustained. And testators are now entitled to rely upon this. But this is of the nature of an exception to a general rule, and the decisions on this branch of the subject are not to be appealed to in support of bequests in favour of other vague and uncertain objects.

The question therefore in relation to every such bequest which is not for charitable purposes merely, is, whether the class of persons or objects is defined with sufficient particularity to avoid vagueness and uncertainty.

In the present case the contentions of the rival claimants were based upon two opposite views of what is the keynote of the testator's direction. The trustees maintain that the ruling idea of the testator, or the keynote of the bequest, is the relief of indigence, and that everything else is of the nature of ancillary limitations. And they therefore contend that the bequest is a bequest for charitable purposes, and should receive the benevolent construction with which it is now fixed that such bequests are to be regarded. It is maintained, on the other hand, by the next-of-kin that the root idea or keynote is practical sympathy in the pursuits of science, and that all else in the testator's direction is of the nature of ancillary limitation.

I am of opinion that the latter is the correct view. The class of persons which the testator desires to benefit are the practical sympathisers in the pursuits of science in any of its branches. But they are to be in indigent circumstances. They are to be single men, whether bachelors or widowers. Their religious beliefs are to be disregarded. They may be either amateurs or professionals. They are to be of sober, moral, and industrious lives. And they are to be not less than fifty-five years of age. But all these conditions are limitations of the class, and the question remains, Is the class itself so particularly defined as to avoid the charge of vagueness and uncertainty? That the purpose by which the testator was actuated was the relief of their indigence will not excuse the defining of the class to be relieved, nor justify striking the word ‘ particular’ out of the second canon of construction to which I have referred. The testator intended indeed charity, but, as it appears to me, a particulars charity, and the question remains whether he has truly made his charity ‘ particular’ or intending to make it ‘ particular’ has left it too vague and indefinite to receive effect.

After a careful consideration of the terms the testator has used, I have come to the conclusion that the bequest is void by reason of its vagueness. The counsel for the next-of-kin put these three pertinent questions—(1) What is science? (2) What is sympathy with science? and (3) What is practical sympathy with science? And to none of the questions can a reasonably definite or intelligible answer be given.

In the first place, I do not know what the testator means by ‘science,’ or rather, I may say, what he does not mean to include in ‘science.’ The word ‘science,’ according to its original derivation, means simply knowledge. In university or educational parlance it has come to be restricted to certain branches of knowledge, where for convenience science is distinguished from languages, divinity, and even from mathematics, though I imagine that by most people mathematics would be regarded as pre-eminently a science. But I do not think there would be any justification for confining the testator's bequest to the professors and amateurs of science in the university sense. At least, I think there would be as little justification for this restriction as for confining the term religion

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to the Christian religion. Where, then, is it to stop? The devotees of every cult appropriate the term to the subject of their devotion, from the phrenologist and the believer in Christian science to the patron of the prize ring. I am unable therefore to say that science is a less indefinite, vague, and uncertain term of differentiation than religion— Grimond's case, 6 F. 285, and L.R. 1905, A.C. 124.

But even could I give a definite and limited meaning to science, I should find myself unable to tell what the testator means by ‘sympathy in the pursuits of science,’ and I should find it by no means easier, but, on the contrary, much more difficult, to know what he means by ‘practical sympathy in the pursuits of science.’ I am not sure that the difficulty is not increased by his use of the word ‘pursuits’ in the plural. But I do not think it necessary to prosecute that point. It is quite possible that what he really meant was to define as the objects of his benefaction the class of persons who have done something for the advancement of science in the more limited sense of that term, but he has not said so. I cannot limit the expression ‘who have shown practical sympathy in the pursuits of science’ to those who have practically devoted themselves to the advancement of science. ‘Practical sympathy’ appears to me to be an altogether nebulous phrase. It will include the devotion of a life to the search for some yet undiscovered mineral, or to the prosecution of observations in anything from astronomy to bacteriology. Those who show it will include the man who endows a scholarship in the faculty of chemistry, or who subscribes in aid of a new Arctic expedition, but will also include the man who attends a Royal Society lecture, though he never read a word on its subject or could venture to open his mouth regarding it. They will even include the man who, without any inclination to the pursuits of science himself, relieves the necessities of a devotee of science, whose devotion has not produced him a living. I do not need to multiply illustrations. I have said enough to indicate that, to the best of my judgment, while ‘science’ is a term of no definite or ‘particular’ meaning, ‘those who have shown practical sympathy in the pursuits of science’ is a definition altogether vague and uncertain. I shall therefore find accordingly, and sustain the claim for the next-of-kin of the late Mr Murdoch to the residue of his estate.”

The Trustees reclaimed, and argued—The fact that the testator's object was concerned with the relief of indigence was, per se, sufficient to make this a “charitable” bequest, not only within the liberal meaning of the word “charity,” as applied by the Courts in Scotland, but even in the somewhat narrower sense which had sometimes been given to it in England. The farther fact that his object was also combined with a desire to benefit science could not detract from its “charitable” nature, so that the Lord Ordinary's attempt to discover whether the bequest was mainly charitable or mainly scientific was meaningless and irrelevant. Now charitable bequests were viewed by the Court with special favour, and an attempt was always made to give effect to them when practicable, if not in the precise shape provided for by the testator, at anyrate on the principle of cy pres, in some way as closely resembling it as possible—see Andrews, &c. v. Ewart's Trustees, May 27, 1885, 12 R. 1001—so that the present bequest was not void merely because there might be difficulty in the way of its exact application, provided the testator's general intention was reasonably plain. The following were cases where charitable bequests—many of them far vaguer than the present—had been sustained— Hill, &c. v. Burns, April 14, 1826, 2 W. & S. 82; Crichton v. Grierson, July 25, 1828, 3 W. & S. 329, see page 343; Miller and Others v. Black's Trustees, July 14, 1837, 2 S. & M'L. 866; Dundas v. Dundas, January 27, 1837, 15 Shaw 427; Kelland, &c. v. Douglas, &c., November 28, 1863, 2 Macph. 150; Milne's Executors v. Aberdeen University Court, May 16, 1905, 7 F. 642, 42 S.L.R. 553; Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506; Magistrates of Dundee v. Morris, May 1, 1858, 3 MacQueen 134; Bruce v. Presbytery of Deer, March 22, 1867, 5 Macph. (H.L.) 20; compare also Maclean v. Henderson's Trustees, February 24, 1880, 7 R. 601, Lord Moncreiff at 611, 17 S.L.R. 457. The present case was distinguished from the following “disjunctive” cases in which the testatory purposes were charitable “or” otherwise within the option of the trustees, and which were not therefore really charitable bequests— Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212; Grimond or Macintyre v. Grimond's Trustees, 7 F (HL) 90, 42 S.L.R. 466; Shaw's Trustees v. Esson's Trustees, November 2, 1905, 8 F. 52, 43 S.L.R. 21. The difficulty, however, of applying this bequest had been immensely exaggerated. “Science” had a well-known popular signification, and there were numbers of persons who clearly fell within the class intended by the testator. Their rights must not be sacrificed merely because there might be some doubt as to the rights of others. There was no case in which an undoubtedly charitable bequest had been found invalid on account of vagueness in the limitation.

Argued for the respondents—The Lord Ordinary was right in thinking that the first point to be decided was whether the testator's object was mainly charitable or mainly scientific, as on that depended whether the bequest was a “charitable” one in the technical sense of the term. The mere fact that incidentally a bequest might involve some element of charity did not bring it within the category if its essential objects were scientific. Applying the above test, the present bequest was not a charitable one, and, strictly construed, it admittedly was bad. Assuming, however, that it was a “charitable bequest,” it was still too indefinite, because even in such a case the

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necessity for a proper specification of the objects of the bequest had not been relaxed. A testator must clearly indicate the classes or objects of his bequest, although he might delegate the choice of individuals to others — Lord Lyndhurst in Crichton v. Grierson, cit. sup. As to the cases founded on by the reclaimers, they were all cases in which the objects were sufficiently ascertained—see e.g. Dundas, cit. sup. at p. 428; Magistrates of Dundee, cit. sup. at p. 166; Hill, &c. v. Burns, cit. sup. at p. 91. Thus if here the bequest had been to charities generally it would have been good, because the object though wide would have been certain; but an attempt having been made to limit the object, and the attempt having failed, the bequest was bad. The doctrine of cy près postulated an object to which some approximation might be made— Ewen v. Ewen's Trustees, November 17, 1830, 4 W. & Sh. 346, see at 352; Whicker v. Hume, July 16, 1858, 7 Clark's H.L. Cases 124; In re Rhymer, [1895] 1 Ch 19 at 31; Clark v. Taylor, (1853,) 1 Dewry 642; Robbie's Judicial Factor v. Macrae, February 4, 1893, 20 R. 358, 30 S.L.R. 411; Goudie v. Forbes, 1904, 12 S.L.T. 377; Williams v. Kershaw, (1835), 5 Cl. & Fin. 111. [The respondents offered no argument in favour of the second alternative of their claim and second plea-in-law.]