Scottish Court of Session Decisions

On February 14, 1913, Mrs Mary Woods or Bannerman, 1 Crown Circus, Glasgow, widow of the late Robert Bannerman, 16 Blythswood Square, Glasgow, and others, the testamentary trustees of the late Walter Bannerman, 13 Jane Street, Blythswood Square, Glasgow, pursuers and nominal raisers and respondents, brought an action of multiplepoinding in the Court of Session against Mrs Jessie Bannerman or Brodie, wife of and residing with William Brodie, 23a Old Ballygunge, Calcutta, India, and the said William Brodie as her curator and administrator-in-law; Mrs Isobel M'Alpine Davidson or Bannerman, 41 Keir Street, Pollokshields, Glasgow, the executrix of the late Walter Bannerman tertius, sometime residing at Pollock House, Kemishead, near Glasgow; Stanley Cyril Forster Bannerman, 1 Crown Circus, Glasgow; Mrs Mary Ramsay or Bannerman, widow, 25 Montgomerie Drive, Kelvinside, Glasgow; and Robert Bannerman junior, 26 Port Street, Stirling, defenders, the said Robert Bannerman junior being also real raiser and reclaimer. The questions upon which the case is reported are whether a bequest of a power in Walter Bannerman's trust-disposition and settlement was valid, and incidentally the question of expenses.

The facts in the case appear from the opinion ( infra) of the Lord Ordinary ( Ormidale), who, on 20th January 1914, pronounced the following interlocutor:—“… Ranks and prefers the claimants ( a) Mrs Mary Woods or Bannerman and others (Walter Bannerman's trustees), and ( b) Mrs Jessie Bannerman or Brodie, in terms of their claim: Ranks and prefers the claimant Mrs Mary Ramsay or Bannerman in terms of her claim: Repels the claim

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of Robert Bannerman junior, the claim for Mrs Isabel M'Alpine Davidson or Bannerman (executrix of Walter Bannerman tertius), and the claim of Stanley Cyril Forster Bannerman, and decerns: Finds the real raiser entitled to the expenses of raising and bringing this action into Court out of the fund in medio: Finds the real raiser entitled to the expenses occasioned by the objections raised to the competency of the action as against (1) the nominal raisers Walter Bannerman's trustees and the defender Mrs Jessie Bannerman or Brodie, and (2) the defender Mrs Mary Ramsay or Bannerman, jointly and severally: Finds the said claimants Robert Bannerman junior, Mrs Isabel M'Alpine Davidson or Bannerman (as executrix foresaid), and Stanley Cyril Forster Bannerman liable jointly and severally in the expenses of the competition to the said successful claimants, viz., (1) ( a) Mrs Mary Woods or Bannerman and others (Walter Bannerman's trustees), and ( b) Mrs Jessie Bannerman or Brodie, and (2) Mrs Mary Ramsay or Bannerman.”

Note.—“Walter Bannerman primus died on 7th August 1879, leaving a trust-disposition and settlement dated 4th May 1877. The residue of his estate as realised amounted to about £80,000.

He was survived by one daughter, Jessie, and two sons, Robert Bannerman senior and Walter Bannerman secundus. Jessie died in 1896 unmarried. Robert Bannerman senior died in 1902, leaving four children—[Mrs Jessie Bannerman or Brodie, Walter Bannerman tertius, now deceased, Robert Bannerman junior, and Stanley Cyril Forster Bannerman]. Walter secundus died, leaving a widow [Mrs Mary Ramsay or Bannerman], but without issue, in 1903.

Walter secundus was thus the survivor of the three children of Walter primus.

By the trust-disposition and, settlement of Walter primus the free annual produce of his trust estate fell to be divided among his three children in the proportion of three-eighths to each of his sons and two-eighths to his daughter, and the capital of the shares so liferented fall to be divided among the issue of the liferenters respectively. In the event of one child dying without leaving issue to take the share liferented by their parent, the share fell to be divided into two equal parts—the income of one of such parts to be paid to each of the other two children, and the fee thereof to his or her issue. In the event of two children dying before or after the testator without leaving issue, the whole residue was to be paid to the survivor in liferent and his issue in fee.

The 12th article deals with the event of the survivor of the children dying without leaving issue. It is in the following terms:—‘Should the survivor of my children die without leaving issue who survive the term of payment of their shares (but survived by issue of my other children or one of them) my trustees shall pay and convey one-half of the fee of the portion of my estate liferented by such survivor to and among the issue of my other child or children in such way and manner and in such proportions and subject to such conditions as such survivor may have directed by any deed or writing under his or her hand, and failing such writing, then equally between the families of my other children (the share of each family in such case being divided equally among the members thereof), or if one only shall leave issue, then to such issue equally among them: And with regard to the other half of the fee liferented by the survivor, I hereby declare that he or she shall have full power by any mortis causa deed or writing by him or her to dispose of the same, and direct the succession thereto in favour either of religious or charitable institutions, one or more, conducted according to Protestant principles, or of any person or persons whom such survivor may appoint, or partly in favour of such institution or institutions and partly in favour of such person or persons, all in such terms and subject to such conditions and directions as such survivor may think proper: but should the survivor not exercise the foregoing power of disposal, then the said one-half of the fee, or any portion thereof not disposed in virtue of the foregoing power, shall be divided equally among the issue of my other children by families.’

On 26th November 1894, while his brother and sister were still alive, Walter secundus, the eventual survivor, executed a deed of directions, which on the narrative of the 12th article of his father's settlement proceeded as follows:—‘And whereas I have resolved, that should I be the survivor of my father's children, and the event contemplated in the twelfth purpose of the said trust-disposition and settlement should occur, to exercise the power thereby conferred upon me in manner and to the effect underwritten, Therefore I hereby direct the trustees acting for the time under the said trust-disposition and settlement, in the events mentioned in said purpose, ( first) to allocate and pay the one-half of the fee of my said father's means and estate liferented by me to my niece Jessie Bannerman, daughter of my brother Robert Bannerman, and ( second) to pay to my wife Mrs Mary Ramsay or Bannerman, absolutely, in the event of her surviving me, the other half of the fee of my said father's means and estate liferented by me.’

The validity of this deed of directions has been challenged on the ground that it was executed by Walter secundus prematurely, at a date when in fact he was not the ‘survivor’ of the children of Walter primus, both his sister and his brother Robert (senior) being then alive. It is also maintained that the power of disposal conferred upon the testator's last surviving child with regard to the second half of the fee liferented by him is void from uncertainty and that no valid disposal could proceed upon it.

A subsidiary question is raised as to the meaning of the words ‘estate liferented by such survivor,’ whether it means only the estate originally liferented by him, or the estate actually liferented by him at the date of his death.

In my opinion the deed of directions by Walter secundus is valid and effective as

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a deed exercising the powers conferred upon the last survivor of the children of Walter primus.

In the first place, as to the nature of the deed or writing. It deals with both the ‘one’ half and the ‘other’ half of the estate liferented by Walter secundus. It proceeds on a narrative of the 12th article of the trust-disposition and settlement of Walter primus, and inter alia recites the power todeal with the ‘other’ half by mortis causa deed or writing. It then purports to give effect to the power so conferred, in the event of the writer being the survivor of his father's children and of the occurrence of the events contemplated by the 12th article. One of the events so contemplated is the death of the survivor of the children without leaving issue. The deed further contains provisions with reference to the 14th article of his father's settlement, which are of a distinctly testamentary nature. There was nothing to prevent the writer at any time during his life revoking the deed in whole or in part.

In my judgment, therefore, the deed of directions is a mortis causa deed or writing, intended to speak as from the date of the death of Walter secundus, when his life-rent interest in his portion of the trust estate came to an end.

Now Walter secundus was, in fact, the actual survivor of his father's children, and he died without leaving issue, and the deed of directions is under his hand. It seems to me that the whole requirements of the 12th article are satisfied

It is further said that the power is void because of the word ‘religious ‘in describing the institutions which are possible objects of the power. Now it cannot be disputed that if the power given had been to dispose of the estate ‘in favour of religious or charitable institutions’ it could not be sustained as a valid power— Grimond or Macintyre v. Grimond's Trustees, 7 F (HL) 90, Shaw's Trustees, 8 F. 52—there being no suggestion of local or other limitation— M'Phee's Trustees, 1912 S.C. 75.

But the power is not so expressed. There is, in the first place, a double alternative so to speak. The donee is given a power to dispose in favour ‘either’ of institutions, religious or charitable, ‘or’ of persons. Now in none of the cases which were cited was the power under consideration similarly expressed. There was only one class of objects, ‘institutions,’ ‘purposes,’ ‘societies,’ and so on, and it was argued that in the present instance it was not necessary for the donee to consider, much less attempt to give effect to, the alleged invalid alternative of the power at all—that he was entitled to limit the disposal of the estate to persons only. I think he might, but at the same time he was not bound so to do; and exactly the same thing might be said with reference to the institutions themselves. He might distribute the estate only among charitable institutions, ignoring the religious. But it is just because the word ‘or’ falls to be read disjunctively, and the donee is therefore given the power to apply the fund to any of the favoured objects, that the law holds such a power to be void when among the possible objects is found one so indefinitely described as not to be an ascertainable entity. Accordingly I cannot hold that the particular form of expression in the resent case grounds any solid distinction between it and the powers in the other cases to which I have referred.

But then, in the second place, the general words ‘religious or charitable institutions’ are followed by the limiting words, ‘conducted according to Protestant principles.’ Now in my opinion that is a sufficiently precise definition of religious institutions ‘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 at p. 4. It does not appear to me that it should prove more difficult to ascertain institutions conducted according to Protestant principles than ‘foreign missions’— Allan's Executor v. Allan, 1908 S.C. 807. It is to be noted that in Grimond's case, 6 F. 285, Lord Low thought that if the word ‘religious’ had fallen to be construed as referring to the Christian religion, a term of wider signification than Protestant, it would have been sufficiently precise.

Accordingly I am prepared to hold that the deed of directions is a valid execution of the power of disposal with regard to both halves of the estate liferented by Walter secundus.…

In my judgment, therefore, the administration of the trustees of Walter primus has been in strict accordance with the rights of parties. If that be so, then it is not necessary for me to deal with the questions raised with regard to the discharges granted by Robert Bannerman junior and by Walter tertius, but I may say that, in my opinion, looking to the conflicting statements as to the circumstances in which these discharges were obtained and granted, these questions could hardly be disposed of without some inquiry into the facts.

I shall sustain the claims stated for the trustees of Walter primus and Mrs Brodie, and for Mrs Mary Ramsay or Bannerman, and rank and prefer them accordingly, and repel the claims stated for the other parties.”

Robert Bannerman junior, the real raiser, reclaimed and argued—(1) The provision of the settlement in question was void from uncertainty. It contained three alternative directions, and if one of these was void the others fell with it. The direction in favour of “religious or charitable institutions” was bad— Shaw's Trustees v. Esson's Trustees, November 2, 1905, 8 F. 52, 43 S.L.R. 21; Macintyre v. Grimond's Trustees, January 15, 1904, 6 F. 285, Lord Moncreiff at 291, 41 S.L.R. 225; March 6, 1905, 7 F (HL) 90, 42 S.L.R. 466; Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, Lord Davey at 2, 39 S.L.R. 212 ( sub voce Young's Trustees). Though a charitable institution had been sufficiently defined— Dundas v. Dundas, January 27, 1837, 15 S. 427—it was impossible to say what a religious institution was. The qualification “conducted according to Protestant principles” did not sufficiently define the meaning. Such institutions were not necessarily under the Protestant Church. They

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might be of any religion. There was no definition of Protestant principles. The Crown might be said to be a religious institution on a Protestant basis—Imperial Dictionary sub voce Protestant; Encyclopædia Britannica, sub voce Protestant. In support of their argument counsel also referred to Brown's Trustees v. M'Intosh, May 26, 1905, 13 S.L.T. 72; M'Conochie's Trustees v. M'Conochie, 1909, S.C. 1046, 46 S.L.R. 707; Allan's Executor v. Allan, 1908 S.C. 807, Lord Kinnear at 814, 45 S.L.R. 579; Smellie's Trustees v. Glasgow Royal Infirmary, October 31, 1905, 13 S.L.T. 450; M'Phee's Trustees v. M'Phee, 1912 S.C. 75, Lord Dundas at 77, 49 S.L.R. 33; and distinguished M'Lean v. Henderson's Trustees, February 24, 1880, 7 R. 601, Lord Moncreiff at 611, 17 S.L.R. 457; Cleland's Trustees v. Cleland, 1907 S.C. 591, 44 S.L.R. 412; Hay's Trustees v. Baillie, 1908 SC 1224, 45 S.L.R. 908; Macduff v. Spences Trustees, 1909 S.C. 178, 46 S.L.R. 135; Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506; Weir v. Crum Brown, 1908 SC (HL) 3, Lord Loreburn, L.C., at 4, 45 S.L.R. 335; M'Phee's Trustees v. M'Phee ( cit. sup.); Allan's Executor v. Allan ( cit. sup.). (2) The expenses should come out of the estate, since the testator had caused the difficulty which gave rise to the present action— Hill, &c. v. Burns, April 14, 1826, 2 W. & S. 80, Lord Gifford at 92; Magistrates of Dundee v. Morris, &c., March 25, 1858, 3 Macq. 134, Lord Cranworth at 177.

Argued for Mrs Mary Ramsay or Bannerman (claimant and respondent)—(1) The term “religious” need not necessarily be treated as of uncertain meaning, but in a suitable context as here it might stand— M'Phee's Trusteees v. M'Phee ( cit. sup.); Macintyre v. Grimond's Trustees ( cit. sup.) There were in the settlement not three alternative directions but two only—( a) in favour of institutions ( b) of selected persons. The “or” between “religious” and “charitable” was not really disjunctive. On this view the intention of the testator was perfectly clear. Even were it held that there were three alternatives, the nature of the religious institutions to be benefited was clearly defined. In Shaw's Trustees v. Esson's Trustees ( cit. sup.), Lord Stormonth Darling at 54, the directions given to the trustees had been abnormally wide, whereas here the direction in favour of “religious or charitable institutions” was sufficiently precise to be given effect— Crichton v. Grierson, July 25, 1828, 3 W. & S. 329, Lord Lyndhurst, L.C., at 338. Even, however, were that direction held void from uncertainty, the alternative direction should be given effect to, as it conferred a beneficial right on the donee. Taking the directions as a whole they conferred a beneficial right on the donee to bestow the fee on anyone he pleased. The case of Allan's Executor v. Allan ( cit. sup.) founded on by the reclaimer being concerned with the powers of trustees, not of liferenters, did not here apply. (2) On the question of expenses the plea of bar was still open. The present was not a suitable case for the application of the rule of Hill, &c, v. Burns ( cit. sup.) and Magistrates of Dundee v. Morris, &c. ( cit. sup.)

Argued for Walter Bannerman's trustees and Mrs Jessie Bannerman or Brodie, respondents—The Lord Ordinary had reached a right conclusion on the question of expenses. The expenses should not come out of the fund in medio, since the action was really one against certain of the beneficiaries in the trust estate, and was brought, not to aid the trustees in the administration of the trust, but to upset what they had already done in the discharge of their duties.

At advising—