Scottish Court of Session Decisions

By his trust-disposition and settlement the late George Charles M'Conochie, who died in 1879, conveyed his whole estate to Lachlan Mackinnon junior, advocate in Aberdeen, as trustee for the purposes therein mentioned.

Page: 708↓

The trust-disposition contained the following direction:—“And whatever reversion of my said estate, heritable and moveable, there may be over and above meeting the foresaid annuities, provisions, and bequests, I hereby direct my said trustee, failing my making further bequests or leaving further provisions from the same, to divide the same, as he shall think tit, amongst such educational, charitable, and religious purposes within the city of Aberdeen, as he shall select to be the recipients thereof.”

In 1908 a Special Case was presented to the Court, to which the parties were (1) the surviving and acting trustees under the trust-disposition, and (2) the representatives of a brother of the testator who was his sole heir and had died in 1893, and in which the following question was stated for the opinion of the Court:—“Is the said bequest of residue void from uncertainty?”

Argued for the first parties—The natural construction of the residue clause was that the testator intended to benefit one class, and one class only, of organisations, namely, those which were at once educational, charitable, and religious. It was not difficult to conceive of institutions to which all these adjectives would apply, e.g., foreign missions— per Lord M'Laren in Allan's Executor v. Allan, 1908 S.C. 807, at p. 817, 45 S.L.R. 579, p. 584. The conjunction used by the testator was “and” not “or,” and the meaning these parties contended for could not be more naturally expressed by any words other than those the testator had used. Since the case of Grimond or Macintyre v. Grimond's Trustees, March 6, 1905, 7 F (HL) 90, 42 S.L.R. 466, the tendency had been distinctly in favour of sustaining charitable bequests, and the Court would hold them void from un certainty only in the last resort— Macduff v. Spence's Trustees, 1909 S.C. 178, 46 S.L.R. 135, per Lord M'Laren. It was thus only necessary for these parties to show that the testator's words were capable of being construed in such a way as would make the bequest valid. If the bequest here were construed in the way these parties contended for, it was certainly less vague than the bequest which was sustained in Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506, or than a bequest for charitable and public purposes which would be good— per Lord Davey in Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212. If the bequest was for charitable purposes the addition of adjectives which would be vague if they stood alone did not result in voidness from uncertainty— Weir v. Crum Brown, 1908 SC (HL) 3, 45 S.L.R. 335. The case of Williams v. Kerschaw, 1835, 5 Cl. & Pin. Ill, 42 R.R. 269, was distinguishable, because there the words were held to be used disjunctively. Further, that case was not followed in Cobb v. Cobb's Trustees, cit.

Argued for the second parties—The question was whether the testator intended to indicate three different classes of purpose or one class exhibiting the three features mentioned. The use of the word “and” was not conclusive— Williams v. Kerschaw, cit.—and other considerations indicated that the testator used the words disjunctively, and had in his mind three different classes of purpose. That view did not involve reading “or” for “and,” because if “or” had been used the meaning might have been that the trustee was to give the whole residue to the one of the three classes mentioned which he should, in his discretion, select. It was not very easy to conceive of institutions which were all the three things mentioned. The fact that the adjectives used by the testator were by no means synonymous or even similar in meaning supported the view that they were used disjunctively—per Lord M'Laren in Hay's Trustees v. Baillie, 1908 SC 1224, at p. 1233, 45 S.L.R. 908, p. 913. If the words were used disjunctively and three different classes of purpose were meant, one of which was religious, the bequest was undoubtedly void from uncertainty— Grimond or Macintyre v. Grimond's Trustees, cit.