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A truster who died in 1895, by a settlement executed in 1893, directed his trustees to apply the annual proceeds of a certain sum as a bursary “to be conferred on one young man of merit, being a native of the parishes of C or T, and to be tenable for three years,” to enable the holder to attend the Arts Classes in any of the Scottish Universities with a view to taking his degree. In October 1892 women were admitted to the arts degrees of the Scottish Universities. In 1910 the trustees presented a petition to the Court craving power to extend the benefits of the trust to young women. They averred that in the fifteen years since the truster's death only three young men had been found eligible, and that in 1907, 1908, and 1909 no eligible candidate was found.
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Held that in the circumstances there was not sufficient to justify the extension craved, and petition dismissed.
In April 1910 the Reverend Thomas Marjoribanks and others, ministers and elders of the parishes of Callander and Trossachs, and, as such, trustees of the Duart Bursary Fund, presented a petition to the Court craving power to extend the benefits of the fund to women.
By his trust-disposition and settlement, dated 13th December 1893, the late James Stewart of Duart House, Callander, who died on 18th June 1895, provided, inter alia, as follows:—“ In the ninth place, I direct my said trustees and their foresaids, at the first term of Whitsunday or Martinmas Occurring after my death, to lay out the sum of Twelve hundred pounds sterling in a safe investment of as permanent a nature as possible, and to take the title thereto or other document thereof in the names of the Ministers and Kirk-Sessions of the parishes of Callander and Trossachs jointly, and their successors in office, and to deliver said title or document over to the said Ministers or Kirk-Sessions. And I request and direct the said Ministers and Kirk-Sessions regularly to uplift the interest or produce derived from such investment, and to apply the whole free amount thereof as a bursary to be called the ‘James Stewart, Duart, Bursary,’ to be conferred on one young man of merit, being a native of the parishes of Callander or Trossachs, and to be tenable for three years, to enable such young man to attend the Arts Classes in any of the Scotch Universities with the view of his taking the degree of Master of Arts, and his attendance at such classes shall be a condition of his holding such bursary; and I hereby give full discretionary power to the said Ministers and Kirk-Sessions jointly as to the mode of selection of the person from time to time to hold said bursary, hereby constituting them jointly the sole patrons thereof, their decision on all points to be final; and with power to the said Kirk-Sessions to alter the investment of the said sum of Twelve hundred pounds sterling as they may think proper or advisable.”
The petitioners averred — “The petitioners, as soon as they were vested in the capital of the foresaid bequest, proceeded in every way they could think of to make known to the public, and more particularly to the inhabitants of the parishes of Callander and Trossachs, the terms of the said bequest, and to invite applications to be made to them by young men for the benefit of the bursary fund. Towards this end advertisements have also been frequently inserted in The Scotsman, Glasgow Herald, and Callander Advertiser newspapers. The petitioners, who, as a body, are thoroughly acquainted with the whole inhabitants of the foresaid two parishes, have also used every possible personal endeavour to inform all likely persons of the terms of the foresaid bequest, but, notwithstanding all their efforts, advantage has not been taken of it to any thing like its full extent. Though the fund has now been in existence for nearly fifteen years only three young men have in all that time applied and been found qualified for the benefit of the bursary. In several years no young men presented themselves as applicants, and notably in 1907, 1908, and 1909 no eligible applicant was found. The accumulated revenue in the hands of the petitioners now amounts to £147. Though advantage does not seem to be taken of the fund by the young men of the said two parishes (which have not a very large population), the petitioners have, since the institution of the bursary, received repeated applications for it from young women in these parishes who are qualified in all respects but that of sex to receive the bursary, and who are desirous, with the assistance afforded by the bursary, of prosecuting their studies at a Scottish University. In particular, in the years 1907, 1908, and 1909, while there were no applications from young men, the petitioners received applications for the bursary from young women who, apart from sex, were fully qualified to receive it. In view of the terms of the bequest, however, all such applications from the young women of these two parishes have been rejected by the petitioners, who were advised that the constitution of the bequest was such that they were and are not entitled without the authority of the Court to select young women for the benefit of the bursary.… The petitioners accordingly respectfully suggest that the clause of the deed constituting the said bursary should be amended by substituting for the words ‘young man’ and ‘his,’ where these words occur in said clause, the words ‘young man or woman’ and ‘his or her’ respectively.”
On 19th May the Court remitted to Lord Kinross, advocate, to inquire and report.
The reporter reported as follows—“The reporter is aware that the practice of the Court has been to authorise extension in the case of bequests of a nature so circumscribed as to result in practical futility, provided that such extension could fairly be regarded as in no way at variance with the wishes of the testator and in general harmony with the scheme of the settlement. The reporter does not think that a case for interference has been made out in the present petition.
“In the first place, the testator died at a comparatively recent date (1895), and at a time when the admission of women to the degrees of the Scotch Universities was an established practice. The admission of women to the arts degree in the Scotch Universities took place in October 1892. Therefore in this respect the case is different from any of the cases where extension to women has been granted— Governors of Spence Bursary Trust, 25 R. 11, 35 S.L.R. 18; Macpherson and Others for Powers, unreported, October 1898; Clark Bursary Fund Trustees, 5 F. 433, 40 S. L.R. 352; Blyth Scholarship Fund Trustees v. University Court of St Andrews, 7 F. 855, 42 S.L.R. 652).
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In the second place, the reporter cannot concur in the view that the bequest has become so practically unworkable as to justify the intervention of the Court ( Grigor Medical Bursary Fund Trustees, 5 F. 1143, 40 S.L.R. 818).
It is true that petitioners state that in fifteen years only three young men have enjoyed its benefits, but as the bursary is tenable for three years, the result is that during nine years out of the fifteen the funds have been fully employed as directed. The present accumulation amounts to only three years income, and the benefit of this will accrue to any suitable applicant when he presents himself. On the assumption that the testator desired to benefit ‘young men’ only, the extension would, if the failure of a male applicant in any given year permitted the introduction of a young woman to the bequest, result in the exclusion for the two following years of such male applicant as might emerge after the bursary had been given to a female. The reporter can see no reason why, although admittedly there may be years in which the income is for the moment derelict, the favoured parishes should not from time to time furnish male bursars in such numbers as to render the bequest practically useful.”
In the Summar Roll the petitioners moved that the prayer of the petition be granted, and argued that in the circumstances the alteration craved was necessary— Clark Bursary Fund Trustees, February 5, 1903, 5 F. 433, 40 S.L.R. 352. There was more than mere difficulty in getting suitable candidates, which of course would not be sufficient — Grigor Medical Bursary Fund Trustees, July 15, 1903, 5 F. 1143, 40 S.L.R. 818.
The Court dismissed the petition.
Counsel for the Petitioners— Kemp. Agents— W. & W. Finlay, W.S.