Scottish Court of Session Decisions

On the 27th January 1905 Catherine M'Caig, John Street, Oban, brought an action against the University of Glasgow, the accepting trustees under the holograph testamentary settlement, dated 19th June 1883, and relative codicil dated 27th August 1891, of her brother John Stuart M'Caig, banker, Oban, who had died unmarried on 29th June 1902. A supplementary action was brought on the 1st April following, which included other defenders, amongst them the pursuer herself as the sole survivor of the persons nominated as trustees in the said settlement and codicil, and was conjoined with the original action. The pursuer, inter alia, sought declarator “that the said holograph testamentary settlement of 20th January 1900, and relative codicil of 18th February 1902, both executed by the said John Stuart M'Caig, are not valid and effectual to dispose of the free estates and effects, heritable and moveable, of the said John Stuart M'Caig, after payment of his debts and deathbed expenses, except so far as regards the direction contained in said codicil for payment to such of his brothers and sisters as should survive him during their lives of £300 per year, and that the pursuer has succeeded to, and is in right of, the whole of said free estates and effects, and that upon the said debts and deathbed expenses being paid or satisfied, the pursuer will be entitled to have conveyed and made over to her the whole of said free estates and effects.”

Glasgow University compeared as defenders.

At the date of the action the pursuer was the sole next-of-kin and heir in heritage of the testator, whose estate consisted of heritage with a yearly rental between £2000 and £3000, and about £10,000 of moveables. The heritage included considerable properties in and close to the town of Oban.

The holograph settlement was as follows — “I, John Stuart M'Caig, residing at John Square, Oban, Argyleshire, Scotland, being resolved to settle my affairs so as to prevent all disputes after my death in regard to the succession to my moveable means and real estate, hereby nominate and appoint the Court of Session or Supreme Court of Scotland as my trustees and executors, who shall manage and administer the trust by the appointment of a judicial factor from time to time as the circumstances of the management and administration may require from time to time. The purpose of the trust is to pay all my legal debts and deathbed expenses, these debts are to be paid from the accumulations of the yearly income of the trust after the expenses of the management is paid. I also wish that Donald M'Gregor, solicitor, Oban, be continued by the trustees as local factor over all my estate, both moveable and real, at a legal remuneration for his work. The purpose of the trust is that my heritable property be not sold but let to tenants, and the clear revenue or income be used for the purpose of erecting monuments and statues for myself, brothers, and sisters on the tower or circular building called the Stuart M'Caig Tower, situated on the Battray Hill above Oban, the making of these statues to be given to Scotch sculptors from time to time as the necessary funds may accumulate for that purpose, also that artistic towers be built on the hillock at the end of Airds Park, in the parish of Muckairn, and on other prominent points on the Muckairn estate, and on other prominate places on the various estates; such in particular on the Meolroer of Balagown, lying north-east of Kilachonich Farmhouse, my wish and desire is to encourage young and rising artists, and for that purpose prizes be given for the best plans of the proposed statues, towers, &c., before building them, I wish and desire that the local factor during his term of office consult my surviving brother and sisters during their lifetime to consult them in the management of the estate. I give full power to the trustees to sell the property of the Gas Works, which is not to include Battary Hill or Tower—that goes with the unsaleable estate, or otherwise called the Muckairn, Soraba, Inverlonin, and Kilmore properties. My real purpose and intention is that this trust is to be perpetual for all time coming, and that is the reason of appointing the Court of Session as trustees, with the Auditor of the said Court of Session to audit the accounts yearly at the legal fees. And should the Court of Session decline the acceptance of the trust, then and in that case, which I hope and trust will not happen, I appoint the College of Glasgow to be the trustees to carry out the foresaid purposes and real written intentions of this will of mine, and failing the College of Glasgow accepting the trust, I I nominate and appoint in their order as follows—the First the College of Edinburgh, Second in order the College of Aberdeen, Third the College of St Andrews, failing them the trust to be handed over to the Court of Chancery in London as trustees. This holograph last will and testament is sygned by me at Oban this twentyth day of January One thousand nine hundred years (1900). — John Stuart M'Caig, banker, Oban.”

The codicil was in the following terms—“I, John Stuart M'Caig of Muckairn Soraba and Oban Argyleshire Scotland in reference to my will of the twentieth January one thousand nine hundred years made and sygned at Oban holograph do hereby make a codocil to said last will to the effect of more fully describing and explaining my real wishes and meaning in regard to the said will of 20th Jany. 1900 to prevent the possibility of vagueness in construing the said will I do hereby mean by College of Glasgow the University of Glasgow and by the College of Edinburgh I mean the University of Edinburgh and by the College of Aberdeen I mean the University of Aberdeen and by the (Sgd.) J. S. M'C. College of St. Andrews I mean the University of Aberd St. Andrews, I also wish and direct that the said Donald Macgregor be appointed factor over my whole estate

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moveable and heritable as long as he lives and is fit and proper to manage the estate. Further in order to avoid the possibility of vagueness of any kind, I have to describe and explain that I particularly want the trustees to erect on the top of the wall of the tower I built in Oban statues in large figures of all my five brothers and of myself namely Duncan John Dugald Donald Peter and of my father Malcolm and of my mother Margret and of my sisters Jean Cathrine Margret be J. S. M'C. and Ann and that these statues by modelled after photographs. And where these may not be available that the statues may have a family likeness to my own photograph or any other member of of my foresaid family and that these statues will cost not less than one thousand pounds sterling and that money to come out of the accumulated clear revenue. Should any vagueness of any kind crop up, as to the trustees or the purposes of the trust to render it void from uncertainty Judicially in that case I name and appoint the Town Council of Oban burgh. And the chairman of the Parish Council of the parish of Kilmore and Kilbride Oban as trustees to manage the estate under the factorship of the foresaid Donald Macgregor solicitor Oban, Moreover I wish and direct that the sum of three hundred pounds per year be paid to such of my brothers and sisters as may survive me as long as they live I also desire my trustees to carry on the law suit of the Muckairn right of way at present before the House of Lords under appeal from the First Division of the Court of Session Edinburgh to a final judgement. Sygned by me holograph to-day the eighteenth of February one thousand nine hundred two years by my own hand writing all holograph. (Signed)

John Stuart M'Caig.

Feb. 18th 1902.”

[ The words in italics were scored through.] The pursuer, inter alia, pleaded—“(1) The said testamentary settlement of 20th January 1900 and relative codicil of 18th February 1902 being void and ineffectual from vagueness and uncertainty as to their meaning and effect, except to the extent specified in the first conclusion of the summons, the pursuer is entitled to decree in terms of the said conclusion.”

On 6th December 1905 the Lord Ordinary ( Dundas) pronounced the following interlocutor—“Finds that the testator conveyed his whole means and estate to the defenders as trustees for the purposes specified in the holograph settlement and codicil, dated respectively 20th January 1900 and 18th February 1902, and that the said settlement and codicil are not void from vagueness or uncertainty or otherwise ineffectual in law, and to the above effect and extent sustains the fourth and fifth pleas-in-law for the defenders the University of Glasgow in each of the conjoined actions: Dismisses said actions and decerns: Finds the pursuer and compearing defenders entitled to expenses as between agent and client out of the estate of the testator,” &c.

Opinion.—“The late John Stuart M'Caig died unmarried on 29th June 1902. He left heritable estate with a yearly rental of between £2000 and £3000 and moveable estate amounting to about £10,000. His sole surviving sister, who is the pursuer, is the only person who would be now interested in his succession, heritable and moveable, if he died intestate. The principal question raised by the conjoined actions is whether or not a holograph settlement, dated 20th January 1900, and a holograph codicil, dated 18th February 1902, both written by Mr M'Caig, are void from vagueness and uncertainty or otherwise ineffectual in law, and if so to what extent. The pursuer admits the validity of that portion of the codicil by which the truster directs ‘that the sum of £300 per year be paid to such of my brothers and sisters as may survive me as long as they live,’ but quoad ultra challenges the settlement and codicil. The compearing defenders are the University of Glasgow, who are the accepting trustees under these writings. The settlement and codicil are printed, and I need not recite their terms. It is important to note at the outset that the action is not one for the reduction of these writings as being ‘not the deeds’ of the testator. On the contrary, it is a declarator based upon the assumption that he was of sound disposing mind. This fact must be kept in view throughout the consideration of the terms, which are peculiar and fanciful, of the settlement and codicil. The question is whether these writings in whole or in part are void from uncertainty, or as being against public policy, or from unworkability, or upon any other ground known to the law.

The pursuers' counsel took up a broad and bold position, based upon the rule of law that a testator in order effectually to disinherit his heir or defeat his executor must divest the estate from the heir or executor by giving it to some one else— Cowan v. Cowan, 14 R. 670; Gardner v. Ogilvy, 20 D. 105; Neilson v. Stewart, 22 D. 646. He maintained that the sole purpose of this trust was to effect that in all time coming the testator's lands should be loaded with statues of himself and his nearest relatives and with ‘artistic towers’ upon ‘prominent points’ or ‘places.’ This, he contended, is not a beneficial trust in any true sense, but one merely for administration of a perfectly non-beneficial kind. There is not, it was urged, any diversion of the estate from the heir nor any gift of it to some one else, but merely an attempted imposition upon her right of a burdensome and unproductive trust administration. This argument was, in my opinion, put too high. The heir has no right save in intestacy; and a truster may, I apprehend, do what he will with his own, provided his testamentary disposition is expressed with sufficient clearness and is not contrary to public policy or morals. The pursuer's counsel founded strongly upon the words, ‘the purpose of the trust is,’ as showing that the testator's sole purpose was the building of the statues

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and the towers. But the identical words occur as applicable to the payment of debts and deathbed expenses. Again, the truster announces, ‘My real purpose and intention is that this trust is to be perpetual for all time coming,’ and the word ‘purpose’ or ‘purposes’ occurs in five other places in this short settlement. On the other hand, it expressly stated that ‘my wish and desire is to encourage young and rising artists, and for that purpose prizes be given for the best plans of the proposed statues, towers, &c., before building them.’ I think that when the settlement is read as a whole it appears that Mr M'Caig's object was really twofold, and embraced both the encouragement of Scottish art and artists and the erection upon his estate of family statues and artistic towers. Each of these aims was intended to be a means towards the achievement of the other.

As regards the statues, I consider that the direction, especially when read along with the fuller explanation in the codicil, is quite precise as to the persons to be immortalised and the site which these family monuments are to occupy. As to the cost, I think it is reasonably clear, looking to the approximate revenue of the estate, and to the words used by Mr M'Caig in an earlier settlement, which it seems legitimate to consult for this purpose, that he intended that each of the statues should cost not less than £1000 sterling, It is true that no indication is given as to the exact dimensions of the statues or of the material to be used in their construction, but these, I apprehend, will be matters for decision by the trustees in conference with the ‘Scotch sculptors’ whom they employ. So far then as the statues are concerned, I am unable to see that the directions are vague or uncertain or unworkable, and though the scheme may be characterised as eccentric or of doubtful wisdom, no ground occurs to me upon which it can be held to be illegal. The due erection of these statues will, I suppose, absorb the trust income for a considerable period apart from any other demands upon it.

The matter of the towers is, in my opinion, attended with more difficulty. The directions here are in my judgment open to more serious attack in respect of vagueness and uncertainty in conception and expression. But I have come to the conclusion, not without hesitation and with some reluctance, that the truster's ‘wish and desire’ have been expressed with sufficient clearness to enable practical trustees to carry them out if they set their minds to it, and are directed to an object which is not illegal and cannot be said to be entirely unbeneficial. It is of course easy to select words or phrases from the will and treat them with ridicule. Thus, for example, the term ‘artistic towers’ is by itself one of somewhat obscure scope and import. But the trustees are directed to give prizes for the best ‘plans’ of the proposed towers before building them, and with the aid of the artists and sculptors there need I think be no difficulty in arriving at a practical definition of what ought to be included in the words. Again, it was objected that ‘young and rising artists’ were a class too vague to be capable of definition. But I think that the phrase is certainly not more indefinite than ‘poor and struggling youths of merit,’ which in a very recent case ( Milne's Executors v. University of Aberdeen, 7 F. 642), was held to be valid and not void from uncertainty. It was suggested that the trustees could not define what are or are not ‘prominent points’ or ‘prominent places’ on the estate for the erection of towers. But the testator has himself indicated at least two such points or places, and it is not to be assumed ab ante that no others of a similar and suitable character are to be found. Indeed, the testator's direction seems to assume the contrary. Passing from these and the like details of criticism, I may say broadly that it appears to me that a trust for the encouragement of young and rising artists, and in particular Scotch sculptors, the practical scope of which is so far defined by the provision for prizes to be given ‘for the best plans of the proposed statues, towers, &c., before building them,’ is not one which can be summarily dismissed without giving it any start or trial whatever. The scheme may be fantastic, and may result in what most people will consider waste of money. But the money was Mr M'Caig's, and the project is neither, so far as I can see, contrary to public policy or morals, nor more vague and indefinite in scope than some of the schemes which have been held to be within the recognition of the law. Thus in Whicker v. Hume, 7 Clark's H.L. Cases 124, the bequest was ‘for the advancement and propagation of education and learning all over the world,’ and in M'Lean's Trustees, 7 R. 601, ‘for the advancement and diffusion of the science of phrenology, and the practical application thereof in particular. I am not aware that the latter case has ever been judicially doubted, and it is referred to as authoritative by Lord Davey in the recent case of Blair's Trustees, 4 F. (H.L.) at p. 4.

But while it seems to me that this part of the truster's settlement ought not to be here and now held as void, it also appears to be not improbable that at some more or less distant date, his scheme having been to some extent carried out may become unworkable and incapable of further extrication. If that should happen the pursuer or those in her right would in my judgment be quite entitled to come to the Court, and might under the altered circumstances succeed in obtaining a judgment to which as matters now stand I do not think she is entitled. Or it may be that the trustees will come at some future period to the Court and ask it to direct the administration of the trust funds, having regard to the doctrine of cypres or otherwise. See Grant, 4 R. 734, and its sequel in Caw's Trustee, 5 R. 1014; M'Culloch, 3 R. 1182; Glasgow Infirmary, 14 R. 680, 15 R. 624; Gibson, 2 F. 1195; Trusts (Scotland) Act 1867 (30 and 31 Vict. c. 97), sec. 16; Dundas. 7 Macph. 670. I do not speculate about or prejudge what might happen in either of

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the events supposed, and my decision of this case now will not of course in any way affect or prejudice the position of parties in any future action or application to the Court under other and different conditions in fact. The defenders referred me to the old case of Macnair, 1791, M. 16,210, where in the reduction. of a trust-deed ‘containing whimsical clauses' the defender urged’ that there was nothing irrational or inextricable at present in the circumstances attending this trust, and if a situation should eventually occur where the trust should become inextricable it would then be time enough to declare it void;’ ‘and the Lords repelled the reasons of reduction.’ The subsequent history of that trust is recounted by the Lord Ordinary (Cunninghame) in Mason v. Skinner, 1844, 16 Scot. Jur. 422. The trust appears after a time to have become unworkable, and was terminated by a second action of reduction about twenty years later than the decision in the Dictionary. In Mason v. Skinner the deed there under consideration seems to have been very properly reduced, because Mr Lindsay, C.A., had reported to the Court ‘that it will not be practicable to carry at all into effect any of the beneficial purposes of the trust.’ Lord Jeffrey said—‘It is no doubt a delicate task to reduce or disallow a testament which is intelligible, on the ground that people on reading it hold up their hands in astonishment at its absurdity, if it is not contra bonos mores. But if it terminates in results not contemplated by the testator or not recognised by law the Court is not bound to go on with it in the meantime.’ Assuming that the settlement under discussion is of the class indicated in the first of the sentences quoted, I do not think that either of the cases supposed in the second sentence can be said to have here arisen. I do not think that I need decide whether or not the subject under discussion is a ‘charitable’ bequest, nor discuss the various views which have been judicially expressed as to the scope and meaning of that adjective— Baird's Trustees, 15 R. 682; Pemsel, 1891, A.C. 531; Blair, 4 Fr. (H.L.) 1. In M'Lean's Trustees, 7 R. 601, and in Milne's Executors, 7 F. 642, the majority of the Judges proceeded apart from that ground. But I am disposed to think that we are here in the region of charitable bequest, as defined and illustrated by the various cases in the books — e.g., Magistrates of Dundee, 3 Macq. 134. Upon the whole matter, for the reasons which I have stated, I am not prepared to hold this settlement and codicil to be, under existing circumstances, void from uncertainty or otherwise ineffectual in law.

It remains to decide whether by these documents the whole of the truster's estate is dealt with and disposed of, or whether, as the pursuer alternatively contends, the moveable estate, and also the heritable property known as the Gas Works, are excluded from their scope. My opinion upon a construction of the words used is in favour of the former and against the latter of these views. The testator states at the outset his resolution to settle his affairs so as to prevent disputes after his death ‘in regard to the succession to my moveable means and real estate.’ By the first purpose his debts, &c., are to be paid ‘from the accumulations of the yearly income of the trust.’ The factor is appointed ‘over all my estate, both moveable and real.’ Then follow the words—‘The purpose of the trust is that my heritable property be not sold, but let to tenants, and the clear revenue or income be used,’ &c. I think that the ‘revenue or income’ must be that of the whole estate, and that it is not legitimate to read in such words as ‘of my heritable property’ after the word ‘income.’ Similarly the word ‘estate’ must, in my judgment, mean the whole estate. Nor do I think that power to the trustees to sell the Gasworks property excludes it, or its proceeds if sold, from the operation of the trust. In my opinion, therefore, the defender's fourth plea-in-law is well founded.

Looking to the views which I have expressed in regard to the validity and effect of the settlement of 1900 and codicil of 1902, it is unnecessary for me to consider or to state any opinion in regard to the earlier testamentary writings of Mr M'Caig, which are set out in the print.”

The pursuer reclaimed.

After the commencement of the hearing in the Inner House the following minute was lodged for the pursuer—“Brown, for the pursuer, craved leave to amend the record by adding, after the first plea-in-law for the pursuer, the following additional pleas-in-law, viz., (2) In respect the said settlement of 20th January 1900, and codicil of 18th February 1902, make no beneficial disposal of the estate of the deceased John Stuart M'Caig except so far as regards the direction for payment of annuities, they are ineffectual to exclude the rights of the pursuer as his sole heir in heritage and moveables. (3) In respect the provisions of the said settlement of 20th January 1900, and codicil of 18th February 1902, relative to the erecting and building of monuments, statues, and towers, are not valid or effectual to exclude the rights of the pursuer in the estates of the deceased John Stuart M'Caig as his sole heir in heritage and moveables, the pursuer is entitled to decree in terms of the first conclusion of the summons.”

Argued for the pursuer and reclaimer—There was no valid bequest of anything except the annuities. In order to disinherit the heir it was necessary to give the estate to someone else. A mere negative deed could not disinherit the heir— Cowan v. Cowan, March 19, 1887, 14 R. 670, 24 S.L.R. 469; Gardner v. Ogilvie, November 25, 1857, 20 D. 105; Neilson v. Stewart, February 3, 1860, 22 D. 646. A beneficiary having the sole interest was entitled to neglect a trust for administrative purposes—Lewin on Trusts, p. 864; Miller's Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L.R. 236. And the same rule applied to the heir where the property was not given to anyone else. There was no person who

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had an interest to insist on the purposes of the trust being carried out, for it conferred benefit on no individual, nor on the public, and consequently there was no room even for an actio popularis, as contemplated by Lord Watson in Andrews and Others v. Ewart's Trustees, June 29, 1886, 13 R. (H.L.) 69, at 73, 23 S.L.R. 822. Any benefit that might accrue to “young and rising artists,” or to Scottish art, was not a primary object of the trust, but a mere incident thereof. The cases referred to by the Lord Ordinary in his opinion were charitable bequests, and these had been recognised in Scotland as well as in England as being in a preferable position— Grimond or Macintyre v. Grimond's Trustees, March 6, 1905, 7 F (HL) 90, 41 S.L.R. 225, and 42 S.L.R. 466; Burn v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212. This trust was in no sense charitable; it was not educational, and the artists need not be “poor and struggling,” hence it was to be distinguished from such cases as Milne's Excecutors v. Aberdeen University Court, May 16, 1905, 7 Fr. 642, 42 S.L.R. 533. Assuming there was someone who had an interest to enforce the purposes of the trust, they were too vague to be capable of being carried out; it was impossible to discover what would be a breach of trust. Thus there was no maximum limit to the cost of the statues, which might apparently be of gold, and the terms “artistic towers,” “young and rising artists,” “prominent places” were too vague to be interpreted. The purposes of the trust were contrary to public policy. In any event, only the income of the heritable estate was dealt with, “clear revenue” referring only to the heritable estate. The moveables and the gasworks were undisposed of.

Argued for the defenders and respondents — A disposition of the whole estate to trustees, if the purposes were sufficiently definitely stated, was a positive disinherison of the heir. The objection that there was here no person who could enforce the will was an objection which would apply to every case in which the selection of the objects was left to the trustees, as where beneficiaries were defined only by locality. But in M'Lean v. Henderson's Trustees, February 24, 1880, 7 R. 601, 17 S.L.R. 457, a bequest was upheld for the pursuit and science of phrenology, and yet no one would have had a title to compel the trustees to carry out the trust. An instance of a bequest in very wide terms was Whicker v. Hume, July 16, 1858, 7 Clark's H.L. Cases, 124. The trust purposes did not merely involve administration of the trust estate. It was simply an accident that the buildings were to be on the estate, and this could not affect the character of the trust. The application of the funds was to be in perpetuity; there was not in Scotland any law against this—M'Laren on Wills, section 564, page 304; Suttie v. Suttie's Trustees, June 12, 1846, 18 Sc. J. 442—and though the trust purposes might eventually become incapable of further fulfilment, it was not the practice of the Court to anticipate ab ante the failure of a trust— Macnair v. Macnair, May 18, 1791, M. 16,210 — the sequel to which was to be found in Mason v. Skinner, 6th March 1844, 16 Sc.J. 422. The purposes of the trust were sufficiently defined, and cases dealing with charitable bequests were not inapplicable, for, apart from the fact that the Court might be more disposed to regard such cases as sufficiently definite, there was no special sanctity about them— Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531, Lord Watson's opinion at p. 560, which was quoted with approval by Lord Robertson in Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, at p. 6, 39 S.L.R. 212. “Young and rising artists” was not more indefinite than “poor and struggling youths of merit,” which had been held not to be void from uncertainty in Milne's Executors ( cit. supra). Even if parts of the deeds were unintelligible, these must simply be held pro non scriptis—Ersk. Inst., iii, 9, 14. Reference was also made to Grant v. M'Queen and Another, May 23, 1877, 4 R. 734, 14 S.L.R. 478; Hutchinson's Trustees v. Young, October 29, 1903, 6 F. 26, 41 S.L.R. 14.

At advising—