Scottish Court of Session Decisions

James Simson, accountant, Edinburgh, died leaving a trust disposition and settlement, dated 2nd November 1869, which contained the following bequest:—“To the minister and kirk session of the Parish Church of Dunbar the sum of Five hundred and sixty pounds sterling, which shall be laid out by them on heritable security at interest, and the annual rent or interest thereof applied as a bursary, to be called the ‘Simson Bursary,’ to be granted by said minister and kirk session to any deserving young man, being a native of Dunbar, attending college in the prospect of becoming a minister of the Established Church of Scotland or as a missionary going abroad, said bursary to be continued to each recipient for a period not exceeding

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three years. And I further declare that it shall be in the power of said minister and kirk session, if they shall see good cause, to withhold or withdraw the grant of said bursary to any young man that they may have selected if his conduct does not meet their approbation.”

The trustees of the bursary received payment of the bequest in 1888. The annual value of the bursary was about £21.

On 20th November 1907 the Rev. William Borland and others, being the minister and kirk session of Dunbar, brought the present petition for alteration of the conditions under which they administered the bursary.

The petition stated—“3. Full publicity has been given to the bursary for some years past. In particular, since 1901 it has been repeatedly intimated in the public schools of the parish, either by notice posted up on the walls thereof or by the schoolmasters, who have informed their scholars of the bursary; and it has also been intimated in the local newspapers and in the calendars of all the Scottish Universities. No application for it, however, has ever been made. 4. It is now the unanimous feeling of the petitioners that the wish of the testator, as expressed in his will, would be better given effect to by enlarging the conditions of the bursary, while providing that in no case should the application of a person duly qualified in the terms of the will be affected by the provisions of any such enlargement of the existing conditions. The change which the petitioners desire to see made in the conditions of the bursary is to add to the present terms of the scheme the following provisions, viz.—‘In the event of no applicant fully qualified in terms of the will claiming the bursary after due advertisement on or before the 1st day of September in any year, the minister and kirk session shall be empowered to grant the free income of that year, or any portion thereof, to any applicant born within the bounds of the Presbytery of Dunbar who shall in other respects fulfil the conditions of the testator's settlement, and, failing such an applicant, to any applicant of whom they may approve without condition as to nativity so long as he is otherwise qualified in terms of the will.’”

On 17th December 1907 the Court remitted to Lord Kinross, advocate, to inquire into the facts stated in the petition and to report.

In his report Lord Kinross stated:—“During the whole period since 1888 no applicant has presented himself as a candidate for the bursary. It appears, from the facts elicited by the reporter as the result of inquiry, that since the year 1888 the managers of the bursary have been on the outlook for possible applicants, and in particular, since about the year 1898, the headmaster of the Burgh Schools, Dunbar, has called the attention of eligible pupils under his charge to the existence of the bursary. In 1903 a notice appeared in the news portion of the Dunbar Parish Magazine, giving complete information as to its terms. It has been advertised once in the Haddingtonshire Advertiser, and also in the Haddingtonshire Courier during each year of the years 1905, 1906, 1907. It has also been intimated in the calendars of the Scotch Universities from time to time.

“The reporter has been informed that the managers of another bequest, viz., The Clark Bursary, for the ‘purpose of founding a bursary in the College of Edinburgh to assist in the education of a student who is a native of Dunbar parish, and intends to become a minister of the gospel,’ have no record between 1875 (the date of commencement of the bursary) and the present date of any application at any time from a qualified candidate, and that since 1892, in spite of regular advertisement, there has been no such application.

The petitioners' proposal is that they should be permitted, failing any application by a native of Dunbar, to elect to the bursary any candidate born within the Presbytery of Dunbar, who otherwise was qualified. The reporter can see no objection to the reasonableness of such a proposal, but considers it to be a matter for the determination of the Court whether in the circumstances it is competent. The reporter begs to remind the Court of the case of The Grigor Medical Bursary Fund Trustees, 5 Fr. 1143.

This case seems to the reporter to establish that before the Court, in the exercise of its nobile officium, will consider the advisability of introducing a substantial variation upon the bequest of a testator, it must be convinced that such bequest is unworkable in its original form. The reporter thinks it is for the Court to consider whether, upon the averments of the petitioners, the onus of showing the scheme to be impracticable has been discharged. The reporter thinks it right to point out that in the case of The Grigor Medical Bursary Trustees the Court was asked to extend the scheme upon an averment ‘that there was a difficulty’ in obtaining candidates on existing conditions, and that the petitioners here being able to aver that during the whole period of twenty years no candidate has ever come forward as a claimant, may be in a more favourable position.

In view of the case of Mailler's Trustees v. Allan, 7 F. 326, where the Court refused to extend the benefits of a bequest, destined to those born in two named counties, to persons born outside those counties, the reporter is doubtful whether an extension of the present scheme to those born within the wider area of the Presbytery of Dunbar can be said to properly fall within the expressed wishes of the testator. The reporter accordingly has thought it right to raise this point also.”

Argued for petitioners—The reporter was satisfied that in spite of every effort to find suitable candidates no application for the bursary had ever been made. In both of the cases cited by the reporter there was only a “difficulty” in finding candidates, while here there was an “impossibility.”