Scottish Court of Session Decisions

Thomas Paterson and others, the trustees of the deceased Helen Paterson, whoresided latterly at 119 North Montrose Street, Glasgow, acting underand in virtue of her trust-disposition and settlement dated 22nd June 1908 ( first parties), and Thomas Paterson, John Paterson, Alexander C. Paterson, and Mrs Janet Paterson or Johnston, the brothers and sister respectively of the said Helen Paterson, and Hugh Miller and Thomas Miller, the only children of Mrs Paterson or Miller, who was a sister of and predeceased Helen Paterson, being all the heirs in moveables of the said Helen Paterson (with the exception of a brother whose address was unknown) ( second parties), brought a Special Case to determine the validity of her disposal of the residue of her estate.

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By her trust-disposition and settlement the testatrix conveyed to her trustees her whole estate for certain purposes. She directed the payment of certain legacies, including “to the Western Infirmary of Glasgow the sum of two hundred pounds.” The last purpose was as follows—“(Fifth) I direct my trustees, after implement of the foregoing legacies, to divide the whole residue of my said whole means and estate among such charities or benevolent or beneficent institutions (including the Western Infirmary) as they in their sole discretion shall think proper, and in such proportions as they may think advisable.…”

The second parties contended that the clause in the trust-disposition and settlement disposing of the residue was too vague and indefinite to receive effect, and further, was void in respect that the beneficiaries sought to be benefited could not with reasonable certainty be ascertained.

The first parties maintained that the power conferred upon them under the said trust-disposition and settlement to divide the residue among such charities or benevolent or beneficent institutions (including the Western Infirmary) as they in their sole discretion should think proper, and in such proportions as they might think advisable, was validly conferred, and that the said provision was not void from uncertainty.

The questions of law for the opinion and judgment of the Court were—“(1) Is the fifth clause of the trust-disposition and settlement of the deceased sufficiently definite to receive effect, and are the first parties entitled to distribute the residue of the estate in terms of it? or (2) Does the residue of the testatrix's means and estate fall to be disposed of as intestate estate?”

Argued for the first parties—The bequest was good. The case was ruled by Hay's Trustees v. Baillie, 1908 S C 1224, 45 S.L.R. 908. Charities meant charitable institutions. “Charitable institutions” was good— Dick's Trustees v. Dick, 1907 S.C. 953, 44 S.L.R. 680; “benevolent or charitable” was good ( Hay's Trustees); the addition of the words “or beneficent” made no difference—they were merely exegetical; an instance of the class to be benefited was supplied by the testatrix. The only requisites for such a bequest were that a particular class or particular classes to be benefited should be indicated— Crichton v. Grierson, July 25, 1828, 3 W. & S. 329, Lord Chancellor Lyndhurst at 338; and that the description of the class to be benefited should be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator— Weir v. Crum Brown, 1908 SC (HL) 3, Lord Chancellor Loreburn at p. 4, 45 S.L.R. 335, referred to in Allan's Executor v. Allan, 1908 S.C. 807, Lord Kinnear at 814, 45 S.L.R. 579. Even if “benevolent or beneficent” were not co-extensive with “charitable,” but indicated separate classes, the words were so nearly akin to it that they should receive the same benignant construction— in re Macduff, [1896] 2 Ch 451; Weir v. Crum Brown ( cit. sup.); Grimond or Macintyre v. Grimond's Trustee, March 6, 1905, 7 F (HL) 90, 42 S.L.R. 466; Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212; Miller and Others v. Black's Trustees, July 14, 1837, 2 S. & M'L. 866, Lord Brougham at p. 891.

Argued for the second parties—There were three classes here indicated by the testatrix, and she had given her trustees the option of selecting which should benefit. The case of Hay's Trustees v. Baillie ( cit. sup.) was not applicable. In the present case there were two substantives, charities and institutions, two adjectives being applied to the latter. As to “benevolent,” it had been construed as not equivalent to charitable, and not entitled to a benignant construction in Morice v. The Bishop of Durham, 1804, 9 Ves. 399, and philanthropic had been similarly treated in re Macduff ( cit. sup.). As to “beneficent,” if it meant anything different from benevolent, it meant “useful,” and that was regarded by Lord Trayner in Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506, as too vague.