Scottish Court of Session Decisions

On 4th August 1908, Jane Wright Armour, Balmoral Terrace, Glasgow, and others raised an action against the Glasgow Royal Infirmary and also against William Walker and others, the testamentary trustees of the late James Wright, calenderer, Glasgow, who died on 6th December 1891. In it the pursuers, who were the testator's four grandchildren and his heirs ab intestato, sought declarator (1) that the ninth purpose of a codicil to Wright's trust-disposition and settlement, dated 4th December 1891, was void from uncertainty; (2) that the residue therein dealt with fell to his heirs in mobilibus ab intestato; (3) that a deed of direction, dated 22nd June 1899, executed by his widow Mrs Elizabeth Storry or Wright under the said ninth purpose of the codicil, conferred no right on the Glasgow Royal Infirmary to receive payment from his trustees of a sum to endow a “James Wright Bed” in that institution; and they also sought repetition of the sum of £2000 from the Glasgow Royal Infirmary, being the sum which had been paid by the trustees to it, or alternatively, repayment of that sum to the said trustees.

The said codicil, dated 4th December 1891, provided, inter alia— “( Ninth) I direct my trustees to dispose of whatever remains of my estate for such purposes of a religious, charitable, or educational character, or partly amongst my own relatives as may be specified in any writing under the hand of my said wife, which failing, as may be appointed by any writing to be executed by the trustees acting at the time of her death under my said trust-disposition and settlement and these presents.”

The amount of residue available for distribution under the said codicil was about £7000. Mrs Wright, in virtue of the power conferred on her by the said clause, executed two deeds of direction to the trustees acting under her late husband's trust—disposition and settlement, which were dated respectively 22nd June 1899 and 7th February 1900, and by which, inter alia, she gave provisions to the pursuers. She also directed that such sums as should be sufficient to found a bed to be called the “James Wright Bed” should be paid to the Royal Infirmary, Glasgow. In virtue of this direction the testamentary trustees paid £2000 to the Infirmary. They also paid the provisions to the pursuers, who accepted payment and granted to the trustees a full discharge of all claims competent to them against the trust estate, in each of which discharges the provisions of the said deeds of direction and the payments made to the grandchildren in terms thereof were expressly narrated.

The defenders, the Glasgow Royal Infirmary, pleaded, inter alia—“(1) In respect of the discharges granted by the pursuers in favour of the other defenders or their predecessors in office, ( a) the pursuers have no title to sue, ( b) these defenders are entitled to absolvitor. (3) The pursuers having accepted payment of provisions conceived in their favour under the ninth purpose of the said codicil dated 4th December 1891, and relative deeds of direction, are barred personali exceptione from challenging the effect of the said deeds. (6) Decree of absolvitor should be pronounced in respect ( a) that the whole residue of the trust estate was validly and effectively disposed of by the truster under the provisions of his trust—disposition and settlement and relative codicils, and ( b) that these defenders received payment of their legacy within the knowledge of the pursuers, and have bona fide expended the same upon the installation of ‘The James Wright Bed.’”

The defenders, the testamentary trustees, pleaded, inter alia—“(1) In respect of the discharges granted by the pursuers in favour of these defenders or their predecessors in office, ( a) the pursuers have no title to sue, ( b) the defenders are entitled to absolvitor. (3) The pursuers having accepted payment of provisions conceived in their favour under the ninth purpose of the said codicil dated 4th December 1891, and relative deed of direction, are barred personali exceptione from challenging the effect of the said deeds. (6) Decree of absolvitor should be pronounced in respect ( a) that the whole residue of the trust estate was validly and effectively disposed of by the truster under the provisions of his trust-disposition and settlement and relative codicils, and ( b) that these defenders, within the knowledge of the pursuers and without challenge on their part, have paid away and distributed the whole of the said residue among parties in whose favour provisions were provided by the truster in his said trust-disposition and settlement and relative codicils.”

On 11th December 1908 the Lord Ordinary ( Skerrington) decerned in terms of the declaratory conclusions of the summons,

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and ordained the Glasgow Royal Infirmary to pay to the defenders, the testamentary trustees, the said sum of £2000 with interest thereon as concluded for.

Opinion.—“The object of this action is to obtain repetition from the Glasgow Royal Infirmary of a payment of £2000 which they received out of the estate of the late Mr Wright. The action is peculiar in respect that it is brought, not by the testamentary trustees who paid the money, but by the four heirs ab intestato of the testator. In the ordinary case such an action could be brought only at the instance of the trustees. In the present case, however, the testamentary trustees have been called as defenders, and they concur with the Infirmary in maintaining that the money was properly paid, and that the pursuers are not entitled to insist on its repayment. In these circumstances I think that the pursuers have a good and sufficient title to maintain this action to the effect of demanding that the money shall be repaid to the trustees.

The first question is as to the validity of a clause in the codicil of 4th December 1891, by which Mr Wright directed his trustees to dispose of the residue of his estate for such purposes of a religious, charitable, or educational character, or partly among his own relatives, as might be specified in any writing under the hand of his wife, which failing, of his trustees. It is, I think, clear from numerous recent decisions that this clause is void from uncertainty. It follows, in my opinion, that the deed of directions executed by Mr Wright's widow, in terms of this power, is also invalid, and that the defenders the Infirmary had no right to receive, and have no right to retain, the sum of £2000 which was paid to them by Mr Wright's trustees in obedience to this deed of directions.

It was, however, maintained by both sets of defenders, viz., the trustees and the Infirmary, that the action could not be insisted in so long as certain discharges granted by the pursuers in favour of the trustees stand unreduced. These discharges were granted by the pursuers in favour of the trustees in respect of the payment by the trustees of certain bequests made to the pursuers by Mrs Wright in the said deed of directions. I agree that these discharges preclude the pursuers from holding the trustees personally liable in respect of the latter having given effect to the directions of the deed under which the pursuers themselves took benefit; but I cannot see how these discharges prevent the trustees (or what is the same thing in the present case), the pursuers, from demanding repetition of a payment which was made in error and which the Infirmary had no right to receive. The discharges were not intended to operate as a gift from the pursuers to the Infirmary.

“The defenders further plead that the £2000 received by the Infirmary has been bona fide expended in the installation of a bed called ‘The James Wright Bed.’ The averments in regard to this are somewhat vague, but it was not maintained that the money was not still in the hands of the Infirmary. Even if the capital had been spent, I do not think that this would be a good defence. The pursuers do not claim repetition of the income.

Accordingly I propose to pronounce a decree in terms of the first, second, and third declaratory conclusions of the summons, and to decern against the defenders, the Glasgow Royal Infirmary, for payment to the other defenders, the trustees of the late James Wright, of the sum of £2000 sterling, with interest from the date of citation, and with expenses.”

The defenders reclaimed, and argued—(1) The pursuers having taken the provisions conferred upon them by the codicil and deed of directions, were barred by the doctrine of approbate and reprobate from maintaining that any of the provisions given under these deeds should be refused effect. (2) As the trustees were alleged to have allotted to the Infirmary what was due to the pursuers, it was against them that proceedings should have been taken, as they were the true debtors— Boulton v. Beard, February 24, 1853, 3 De. G. M. and G. 608. The Infirmary had had no dealings with anybody but the trustees, and if the money had been paid in error it must go back to the trustees. But before the trustees could be sued, the discharges would have to be reduced. This could only be done if these had been granted under essential error induced by the trustees— Stewart v. Kennedy, March 10, 1890, 17 R. (H.L.) 25, 27 S.L.R. 469. As there were no averments relevant to the reduction of the discharges, their validity could not be impugned in this process. Watt v. Rogers' Trustees, July 18, 1890, 17 R. 1201, 27 S.L.R. 904, was special, there being in that case an averment of collusion between the trustees and the beneficiary who was sued.

Argued for the pursuers—(1) This was not a case of approbate and reprobate—Bell's Prin., sec. 1939. (2) The Infirmary had possession of money belonging to the pursuers, and must repay it. The pursuers were entitled to sue the Infirmary directly— Watt v. Rogers' Trustees ( cit. sup.). The discharges were granted by the beneficiaries in favour of the trustees; the Infirmary could not found on them as operating a gift from the pursuers to it. Moreover, the discharges had been granted sine causa by persons in ignorance of their legal rights, and were therefore reducible— Dickson v. Halbert, February 17, 1854, 16 D. 586; Bell's Prin., secs. 583 and 584. Fleming v. Brown, February 6, 1861, 23 D. 443, was also referred to.