Scottish Court of Session Decisions

The Education Scotland Act 1872 (35 and 36 Vict. cap. 62), sec. 47, enacts—“Every school board shall be at liberty to receive any property or funds which may from time to time be conveyed, bequeathed, or gifted to such board for behoof of any school or schools under the management thereof, whether generally or for the promotion of any particular branch or branches of education or instruction, or for increasing the income of any teacher; and it shall be the duty of the board to administer such property, funds, or money according to the wishes and intentions of the donors, and in such manner as to raise the standard of education, and otherwise increase the educational efficiency of the school or schools intended to be benefited.”

On 10th February 1910 David Alexander Wauchope and others, trustees acting under deed of mortification by Miss Christina Anderson of Moredun of the “Anderson Female School,” Gilmerton, presented a petition to the Court for authority to transfer to the School Board of the Parish of Liberton, under certain conditions, the said school and the endowment effeiring thereto.

The trust purposes and the circumstances in which the application was made appear from the report of Mr J. H. Millar, Advocate, to whom on 10th March 1910 the Court remitted the petition.

The reporter stated — “The petitioners are the acting trustees under a deed of mortification executed by the late Miss Christina Anderson of Moredun of this date (December 14, 1885). From the narrative of that deed it appears that about 1848 a school had been established in the village of Gilmerton, Midlothian, by Miss Anderson, along with her brother and sisters, for the purpose of promoting female education in the village and neighbourhood, and that at a subsequent period she and her sister had, at a cost of over £2600, erected a new schoolhouse and other premises for the accommodation of this school, Being desirous of giving effect to her own wish and that of her sister (then deceased) that the school should be maintained in all time coming, she granted the deed of mortification, by which she conveyed the school and other buildings, with the piece of ground on which they were situated, and the furniture and plenishing, to certain trustees, and bound and obliged herself to pay to them a sum of £2100 for the trust purposes therein set forth. This obligation to pay has been duly implemented, the said sum, or an equivalent security, having been handed over to the trustees, who now hold it.

The trust purposes so far as material are set forth in the petition ad longum, and may be thus summarised—The school is to be called ‘The Anderson Female School’; it is to be used in all time coming for the purpose of promoting the education of females in the village of Gilmerton and neighbourhood; and the said sum of £2400 is to be held, and its income applied, for the maintenance and endowment of the school. There is an expression of Miss Anderson's wish that ‘special attention shall be paid to the moral and religious training of the pupils attending the said school,’ and there is a declaration that, notwithstanding that the primary purpose of the school shall be the education of females, the trustees shall have power in the event of the accommodation in the school being at any time more than sufficient for said purpose, to admit boys to the said school in such numbers and with such limit as to age as the school trustees shall think proper.’ These directions exhaust purposes first to third inclusive.

By purposes fourth to sixth provision is made for the management of the school, but this need not be explained in detail. By purposes seventh and eighth the trustees are empowered to build, to rebuild or alter the existing premises, to sell the furniture, and to apply the capital of the endowment, or to borrow money for these objects. A discretion is given to them as regards expenditure in the event of the income from the endowment proving inadequate, and there is an express exclusion of any teacher appointed to the school from any share in its management. There is a farther provision and declaration which will be most conveniently dealt with later on.

Such being in effect the trust purposes of the mortification, the object of the present petition is to obtain your Lordships' authority to the transference upon certain conditions of the school buildings and of the pecuniary endowment to the School Board of the parish of Liberton, within whose district the school is situated. The petitioners aver that the School Board are willing to accept of such transference upon the terms proposed, and that this course will meet with the approval of the Scotch Education Department. The reporter has had a meeting with the chairman of the Liberton School Board, and has had the opportunity of perusing certain correspondence passing between the petitioners and H.M. Inspector of Schools for the district, and he has satisfied himself that these averments are correct.

The ground upon which the petitioners justify their application is the view at which they have arrived that, ‘with the funds at their disposal it is impossible to continue the school in a manner which will meet with the requirements of the Scotch

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Education Department.’ The significance of this appears from their averment that two-thirds of the income of the trust for the past ten years have been derived from various Government grants. Since 1908 the Department have been urging the petitioners to provide courses of instruction in cookery, laundry-work, etc., and to do this will of necessity involve the erection of additional buildings and the engagement of additional teachers. The petitioners accordingly represent themselves as placed in this dilemma. If they comply with the demands of the department, the whole, or the greater part of their endowment fund will be swallowed up in erecting new buildings, and to meet a considerably increased annual expenditure they will have a correspondingly diminished income. If, on the other hand, they refuse to comply with the demands of the Department, the Government grants, upon which they are to so great an extent dependent, will certainly be withheld. In either case, they point out, they would be left with an annual revenue quite insufficient to enable them to carry on the school.

The reporter has examined the accounts of the petitioners for the last ten years, and would respectfully report that in his opinion the petitioners' contentions are well founded. Taking the accounts for the last financial year, ending 28th February 1910, as an example, he finds that the total expenditure for that year amounted to £213, 10s. 1d. This was met by Government grants to the following extent:—aid grant, £8, 11s.; fee grant, £48, 4s.; general aid grant, £9, 19s. 6d.; and parliamentary grant, £75, 5s. 9d.—in all, £142, Os. 3d. The balance of expenditure is met by a sum of £70 from the income of the trust, which amounts in toto to only a few shillings more than that sum. The figures for previous years are not of course absolutely identical, and the sums applied out of the income of the endowment vary from year to year. But they all point to the same conclusion, and the accounts just referred to may be taken as typical of the whole period. The reporter ventures to think it not open to serious dispute that the petitioners have practically no margin to work upon, for it would not take long to swallow up the balance of £134, 12s. 11d., consisting of surplus revenue, which is partly in their hands and partly in the hands of the committee through whom the school is managed. In other words, the failure of the trust purposes is already in sight. The petitioners are not in a position to face the substantial diminution of their income from the endowment fund which building would inevitably involve. Still less can they face the withdrawal of the Government grants. In either eventuality they would be compelled to close the school and leave the buildings derelict. Even were the pressure of circumstances and of the Department less urgent, the reporter entertains grave doubts whether the petitioners could carry on the school as they do at present for more than a very few years. The superiority of buildings, plant, apparatus, and teaching which a school board with the school fund and the school rate behind them can command must tell sooner or later, and would drive the petitioners out of the educational field as competitors. In all probability they would find before very long that they were maintaining and conducting a school with no pupils.

These considerations would alone appear to justify the petitioners in coming to the Court with this application. But the reporter would further point out that the conjuncture which has now arisen was distinctly foreseen and expressly provided for by Miss Anderson and her advisers. The deed of mortification contains this remarkable clause—‘And I hereby expressly provide and declare, notwithstanding anything to the contrary hereinbefore written, that the school trustees shall have power at any time, should they in their absolute discretion consider it expedient, to devolve the execution of the trust hereby created upon such ex officio trustees as they may think proper to appoint, to act either in succession to or along with the school trustees or any of them; and the school trustees shall have power to execute all deeds which may be necessary for fully vesting the said subjects hereby conveyed, and the foresaid sum and investments at the time representing the same, in such ex officio trustees to act as aforesaid; and any ex officio trustees who may be appointed as aforesaid, and their successors in office, shall thereafter (either in succession to or along with the school trustees or any of them, as aforesaid) act as trustees under these presents, and shall hold the said subjects, and the foresaid sum and investments representing the same, in trust upon the conditions and for the uses and purposes and with the powers, privileges, and immunities hereinbefore written, to the same effect as if they had been appointed trustees by these presents.’ These words, coupled with the state of the facts as already explained, leave no doubt in the reporter's mind that, quoad the petitioners at all events, the application is both competent and expedient.

It is also necessary, however, to consider the petition from the point of view of the School Board, and here it is obvious that the proposal to transfer may not be so plain-sailing a matter. Two questions naturally arise—the first as to the power of the School Board to accept such a transference; the second as to their power to agree to the conditions upon which it is proposed that the transference should be made.

Your Lordships are aware that section 38 of the Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62) authorises the transference by trustees to school boards of schools ‘erected or acquired and maintained or partly maintained with funds derived from contributions or donations (whether by the members of a particular church or religious body or not) for the purpose, or authorised by the contributors

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or donors to be applied for the purpose, of promoting education.’ It has indeed been held that the terms of that section apply only to ‘subscription’ schools and not to ‘endowed’ schools, within which latter category the Anderson Female School unquestionably falls— M'Culloch, &c. v. Kirk-Session and Heritors of Dairy, July 20, 1876, 3 R. 1182, 13 S.L.R. 717. But the point really decided in the Dairy case was that a school board has a ‘freer hand,’ as it may be called, in dealing with the trustees of an endowed school than in dealing with the trustees and managers of a subscription school. There is nothing in that decision, nor in any other so far as the reporter is aware, to suggest that it is ultra vires of a school board to agree to take over an endowed school which the trustees are desirous of making over to them. With regard to the endowment as distinct from the school, section 47 of the Act of 1872, which is relied upon and quoted by the petitioners, appears to be conclusive in their favour. It may be said that the section seems to contemplate that the funds which it empowers the School Board to receive are ‘gifted to such board for behoof of a school or schools under the management thereof,’ and that the Anderson Female School is not as yet under the management of the Liberton School Board. But if your Lordships take the view that the transference of the school itself may be carried through, this objection, which at the best would seem to be of doubtful validity, will disappear.

The remaining question, with respect to the conditions to be adjected to the transference, naturally resolves itself into two branches — (1) How far do they safeguard the founder's intentions? and (2) Assuming that the answer to the former inquiry is satisfactory, to what extent is it competent for the School Board to assent to them?

The proposed conditions are in these terms—1. That the present school or any other school in the village of Gilmerton which may be substituted therefor shall be named in all time coming ‘The Anderson School.’ 2. That the endowment fund shall be retained for school buildingsat Gilmerton alone ( i.e., the capital shall not be applied towards meeting the cost of school buildings outside the village of Gilmerton). Until the capital is required for building, the income therefrom shall be applied towards current expenses of board schools in the village of Gilmerton. 3. That the present headmistress of the Anderson Female School shall be retained in the service of the Board on the same terms and conditions as at present, and at a salary not less than that which she receives at present, and that so long as she remains in the Board's service she shall have the occupancy of the teacher's house, or, in the pleasure of the Board, an annual sum of £ shall be paid in lieu of the house.

The first condition secures the perpetuation of the founder's name, as provided or by the first trust purpose of the deed of mortification. This appears to the reporter to be eminently reasonable and proper, and he ventures to think that the condition may competently be agreed to by the School Board.

The second condition seeks to confine the scope of the bequest to the village of Gilmerton. In terms of the deed of mortification the ‘village of Gilmerton and neighbourhood thereof’ are to be the scene of the founder's beneficence, and it would be a singular result if it were incompetent for a school board to accept such an endowment as we have here except upon condition of communicating its benefits to the whole district under their administration. The reporter knows of no rule of public policy which points in any such direction. On the contrary, section 47 of the Act of 1872, as above mentioned, contemplates the permanent association of an endowment with a particular school or schools, and enacts that ‘it shall be the duty of the board to administer such property, funds, or money, according to the wishes and intentions of the donors.’ Many school boards are the governing bodies of endowments attached to schools or localities in virtue of a scheme under the Educational Endowments (Scotland) Act of 1882 (45 and 46 Vict. c. 49), and your Lordships, keeping in view section 7 of that statute, have ever been vigilant lest the range of a founder's beneficence should be extended beyond the area to which he had destined it. (See Governors of Bell's Trust, Petitioners, June 9, 1896, 23 R. 780, 33 S.L.R. 591)

The third proposed condition is conceived in the interests of the present teacher of the school, and at first sight might seem not wholly free from objection. If the ‘terms and conditions’ on which the teacher is at present engaged were different from the only terms and conditions on which a school board are entitled to employ teachers under section 55 of the Act of 1872—if, for example, she held her office ad vitam aut culpam—it would be impossible, the reporter apprehends, for your Lordships to sanction this condition. In point of fact, however, as he has ascertained, the teacher may be dismissed by the petitioners or their committee of managers at any time upon three months' notice; so that the terms of her engagement are really identical with those prescribed by the Act of 1872, as interpreted by the Court — Morrison v. Abernethy School Board, July 3, 1876, 3 R. 945. It may furthermore be observed that section 38 of the Act of 1872, in authorising the transference to school boards of subscription schools, allows the continuance of teachers in their office to be made a condition of the transference, but enacts that their position when so continued shall in all respects be the same as that of teachers appointed under the Act. This difficulty of principle once removed, no valid objection appears to remain to the school board agreeing to give the teacher the remuneration stipulated for in the condition.

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Two further matters call, in conclusion, for consideration. It has already been mentioned that the founder declares it to be her wish ‘that special attention shall be paid to the moral and religious training of pupils attending the said school.’ The School Board are fully prepared to give effect to this wish, as indeed they do in all the schools under their management. The reporter has no doubt that is competent for them to do so, more especially in view of the well-known passage in the preamble of the Act of 1872 which throws the sanction of the Legislature over what is popularly known as ‘use and wont’ in religious teaching. It is true that a difficulty might arise if at some future date a Liberton School Board should resolve that no moral or religious training whatsoever be given to pupils attending the schools under their management. But this contingency appears to the reporter to be so remote as to be practically negligible.

The last point for comment is, that according to the terms of the transfer, the Anderson School is not dedicated exclusively, or even preferentially, to the education of females. The primary object of the founder was the promotion of the education of females in the village of Gilmerton and neighbourhood thereof; and it might be contended that in this respect the founder's intention runs the risk of being ignored. The reporter cannot help thinking, however, that this objection is deprived of its sting when it is borne in mind that the founder herself provided for the reception of boys in the school if there should be sufficient accommodation for them. At present the school can accommodate 110 pupils. The number of girls actually in attendance is 73, and there are also 12 boys. While the School Board may reasonably be expected to use the school in such a manner as shall best fit in with their scheme of education for the locality, there would appear to be no ground for apprehension that the interests of the female pupils for whom they are responsible will be subordinated to those of pupils of the other sex.

In these circumstances the reporter would respectfully venture to submit that the petitioners are amply justified in making this application to your Lordships, and would humbly recommend that the prayer of the petition be granted. If your Lordships should be of this opinion, and should approve the report, your Lordships may be disposed to remit back to the reporter in order that the necessary deeds may be adjusted at his sight and to his satisfaction.”

The case was heard on 21st June 1910 by a Court consisting of Lord Kinnear, Lord Dundas, and Lord Johnston, and taken to avizandum.

On 8th July their Lordships continued the case in order that it might be heard before a full Court of the Division, at which the Lord President would be present.

The case was accordingly further heard on 4th March 1911 before the Lord President and Lords Kinnear, Dundas, Johnston, and Skerrington.

Argued for petitioners — The proposed transfer was not inconsistent with the trust purposes. Esto that the School Board would not be bound to continue religious teaching, the probability was that they would do so. So, too, with regard to the position of the school—the probability was that it would remain in Gilmerton. Esto that in future the transferred funds might be devoted to purposes inconsistent with the trust, it was impossible to provide against all future contingencies. The probabilities were that the trust purposes would be carried out, and that was sufficient to justify the transfer. The fact that the transfer might involve relief to the rates did not render the transfer illegal, in respect that (1) relief of rates was the necessary result of the carrying on of the school from the first, and (2) the testatrix must be held to have anticipated such a contingency by authorising a transfer to ex officio trustees. That being so, the cases of The Kirk-Session of Prestonpans v. School Board of Prestonpans, November 28, 1891, 19 R. 193, 29 S, L.R. 168; and The Governors of Jonathan Anderson's Trust, March 12, 1896, 23 R. 592, 33 S.L.R. 430, were inapplicable. It was clearly competent for the School Board to accept the transfer, for a school board had power to accept gifts of lands, houses, &c.—The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), secs. 37, 38, and 39. Further, section 47 expressly recognised trusts. A school board was entitled to take a lease of a school provided by an ancient endowment — M'Culloch v. Kirk-Session and Heritors of Dalry, July 20, 1876, 3 R. 1182, 13 S.L.R. 717. The case of M'Lean, November 4, 1898, 1 F. 48, 36 S.L.R. 46, was distinguishable, for there the trustees seeking to transfer were an ex officio body of a permanent character. So, too, was the case of Sutherland, February 3, 1903, 5 F. 424, 40 S.L.R. 345—[vide also its sequel, May 12, 1905, 7 F. 634, 42 S.L.R. 561]—for that was a gratuitous conveyance of trust purposes, not a transference as here under conditions. In M'Grouther's Trustees, December 23, 1910, 48 S.L.R. 220, the Court had sanctioned a transfer of an educational endowment to a body of a permanent character. The School Board was such a body, and the petition should therefore be granted.

There was no appearance for the School Board.

At advising—