Scottish Court of Session Decisions

John Houston, British Linen Bank, Lanark, and others, trustees under the trust-disposition and settlement of the late Mrs Annabella Robertson Paterson or Turnbull, pursuers, brought an action of multiplepoinding and exoneration. Claims were lodged, inter alios, by the pursuers, for administration, and by the Lord Advocate, as ultimus hæres.

The testatrix, widow of the Rev. Thomas Turnbull, one of the ministers of the parish of Lesmahagow, died on 23rd October 1894 leaving a trust-disposition and settlement whereby she conveyed her whole means and estate to the pursuers as trustees. The trust-disposition directed them with regard to the disposal of the residue of the estate “to hold such residue till such time or times as they see fit, and apply the same for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper.”

The pursuers as claimants pleaded—“On a sound construction of the said trust-disposition and settlement, the claimants being bound or otherwise entitled to administer the fund in medio in the manner condescended upon, should be ranked and preferred in terms of their claim.”

The Lord Advocate pleaded—“The truster's direction for the disposal of the residue of her estate being void from uncertainty cannot be given effect to.”

On 4th July 1916 the Lord Ordinary ( Ormidale) repelled the claim for the Lord Advocate and sustained the claim for the trustees, and ranked and preferred them to the fund in medio.

Opinion.—“…. The question whether or not a particular bequest is void from uncertainty has been the subject-matter of many decisions in recent years. The case on which the Lord Advocate chiefly founds in the present action is Blair v. Duncan, 3 F. 274 and 4 F. (H.L.) 1. It was there held that a bequest ‘for charitable or public purposes’ was void on the ground that the words fell to be read disjunctively, that it would therefore be in the power of the trustees to apply the whole fund to ‘public purposes,’ and that that was a description of the objects of the bequest which was too vague and indeterminate to be capable of receiving effect. The bequest in the present case is for public, benevolent, or charitable purposes. It is said that these words must be read disjunctively, so that it would be in the power of the trustees to apply the bequest wholly for one or other of them and therefore for public purposes. An argument was directed against the view that the words must be read disjunctively which I shall consider later, but, assuming that they must be read disjunctively, then if there is no other expression in the bequest restricting the generality of the phrase ‘public purposes,’ the bequest would be invalid. The trustees, however, maintain that the words ‘in connection with the parish of Lesmahagow or the neighbourhood’ supply a sufficient determination of the purposes to make the law of Duncan v. Blair inapplicable. This raises a question of some difficulty.

A rule which has been accepted as of general application in cases of this class was thus stated by Lord Lyndhurst in Crichton v. Grierson, 3 W. & S. 329, at 338–9—A party ‘may in the disposition of his property select particular classes of individuals and objects and then give to some particular individual a power after his death of appropriating the property or applying any part of his property to any particular individuals among that class.’ In Weir v. Crum Brown, 1908 SC (HL) 3, the Lord Chancellor (Loreburn) at p. 4 says—‘All that can be required is that the description of the class to be benefited shall be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator.’ I may also refer to the case of Allan's Executor v. Allan, 1908 S.C. 807, where Lord Kinnear (at p. 814) puts the matter thus—‘That is therefore the rule which is held to be established by Crichton v. Grierson and the subsequent cases, and the question to be put in each particular case is whether the description of the class to be benefited is sufficiently exact to enable the executor of common sense to carry out the expressed wishes of the testator.’ Putting that question in this particular case the answer must, in my opinion, be in the affirmative. It was not decided, as I read the judgments in Duncan v. Blair, that the words ‘public purposes’ are in themselves so absolutely vague and indefinite, so absolutely ‘misty,’ to adopt Mr Watson's description of them, as to be wholly incapable of receiving effect in any circumstances. Now the want of any limitation by locality appears to have been present to Lord Robertson's mind in Duncan v. Blair. ‘The testatrix,’ he says, ‘has done nothing like selecting a particular class or particular classes of objects. She excludes individuals, and then leaves the trustee at large with the whole world to choose from.’ There is ‘nothing affecting any community on the globe which is outside the ambit of his choice.’ As Lord Brampton says in the same case, the trustee had conferred upon him the power ‘to apply the whole of the bequest solely to any one or more of innumerable public purposes comprised within an unlimited area. In short, the intentions of the testatrix are on the face of the will and codicil so far as relates to the “public purposes” to be benefited in absolute “uncertainty.”’ That cannot be predicated of the truster's intentions here. The ‘public purposes’ to be benefited are not left in absolute uncertainty. They are ‘public purposes’ connected with the parish of Lesmahagow or the neighbourhood. The words ‘public purposes,’ which standing by themselves are entirely vague and indefinite, become in my judgment sufficiently precise and determinate when read in connection with an area so restricted as a particular parish

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to enable the trustees of the will to carry into effect the express wishes of the testatrix. I admit the force of the distinction drawn by Mr Watson between the word ‘institutions’ and the word ‘purposes’ when read with reference to a particular locality— M'Conochie's Trustees, 1909 SC 1046. It would certainly have been easier to reach the decision I have arrived at if the word in this case had been ‘institutions’ and not ‘purposes’; but the distinction is not to my mind necessarily vital and conclusive. Each case must of course be decided on its own merits with reference to the particular form of words used by the truster; but that the limitation of the operation or application of the bequest to a precise locality may, to say the least, be helpful towards reducing the indefinite to the definite, has been recognised in the cases of Smellie's Trustees, 13 S.L.T. 450, and M'Phee's Trustees, 1912 S.C. 75. No doubt on the other hand it was not given effect to in Brown's Trustees, 1905, 13 S.L.T. 72, and M'Grouther's Trustees, 1907, 15 S.L.T. 652. In Shaw's Trustees, 8 F. 52, there was a special power given to the trustees which, as Lord Stormonth Darling observed, ‘left the trustees as free to make a will for the testatrix as were the trustees in Grimond's case, 7 F (HL) 90, which of course is the thing struck at by the rule which makes a bequest void from uncertainty.’ In the present case it seems to me that the limitation of the bequest to the parish of Lesmahagow or the neighbourhood excludes entirely the power of the trustees to make a will for the testatrix, and I cannot think that they will have any difficulty in the exercise of their discretion in determining what is a public purpose in connection with the locality thus defined by the testatrix— Clelland's Trustees, 1907 S.C. 591.

I did not understand it to be maintained that the word ‘benevolent’ created any difficulty, and in the light of decided cases I do not think it does— Hay's Trustees v. Baillie, 1908 SC 1224; Paterson's Trustees, 1909 S.C. 485; Macpherson's Trustees, 1909 S.C. 1041.

Accordingly, I am prepared to hold that the residuary bequest under Mrs Turnbull's settlement is not void from uncertainty.

Alternatively it was maintained by the trustees that the words ‘public benevolent or charitable’ fell to be read ‘public benevolent or public charitable,’ the word being given the force of an adverb rather than that of an independent adjective. The case of Cobb's Trustees v. Cobb was cited in support of this contention. There, however, the words under construction were ‘useful benevolent and charitable institutions.’ The conjunctive was ‘and’ and not ‘or,’ and the words therefore fell naturally to be read together and not disjunctively as alternatives to one another. Here, moreover, we have the word ‘purposes’ and not ‘institutions.’ Accordingly, while I recognise that I am bound to adopt a construction which sustains a will rather than one which destroys it, I can only do so if the construction so adopted is one which the words can reasonably and fairly bear. It appears to me that to read the words in the will in question as if they meant ‘public benevolent purposes’ or ‘public charitable purposes’ would be to give them a forced and unnatural construction not intended by the testatrix.….”

The Lord Advocate reclaimed, and argued—It had been decided that a bequest such as the present one was void— Blair v. Duncan, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212—and a bequest in favour of charitable or religious institutions not particularly defined had similarly been declared void— Macintyre v. Grimond's Trustees, 1905, 7 F (HL) 90, 42 S. L. R. 466. A general bequest for public purposes was not rendered a good bequest by describing the area to be benefited in geographical or topographical terms, especially when the benefits could be extended to a district so vaguely defined as “the neighbourhood.” The wording of the bequest was such as practically to give the trustees a free hand in its administration. They had had conferred upon them a full discretion both as to the time at which and the purposes for which they could apply the bequest. Counsel also cited the following cases— Shaw's Trustees v. Esson's Trustees, 1905, 8 F. 52, 43 S.L.R. 21; Brown's Trustees v. M'Intosh, 1905, 13 S.L.T. 72, per Lord Johnston; M'Grouther's Trustees v. Lord Advocate, 1908, 15 S.L.T. 652, per Lord Mackenzie; Hill v. Burns, 1826, 2 W. & S. 80; M'Phee's Trustees v. M'Phee, 1912 S.C. 75, 49 S.L.R. 33; Miller v. Black, 1837, 2 Sh. & Macl. 866, per Lord Brougham at p. 892.

The trustees argued—The word “charitable” although it was considered to bear a more defined meaning in England than in Scotland, yet was sufficiently definite to prevent a bequest to charitable purposes being held void from uncertainty in the latter country— Crichton v. Grierson, 1828, 3 W. & S. 329. The words of the bequest ought to be read conjunctively, qualifying and describing each other. A bequest for benevolent or charitable purposes of a public nature was legally a valid one. The limitation of the area to be benefited to the parish and neighbourhood was important. Lords Robertson and Brampton took into account the absence of limitation of area in the case of Blair ( cit.); cp. Weir v. Crum Brown, 1908 SC (HL) 3, 45 S.L.R. 335, and Allan's Executor v. Allan, 1908 S.C. 807, per Lord Kinnear at p. 814, 45 S.L.R. 579. The test suggested by Lord Kinnear, viz., “whether the description of the class to be benefited is sufficiently exact to enable an executor of common sense to carry out the directions of the testator” had been followed in Hay's Trustees v. Baillie, 1908 SC 1224, 45 S.L.R. 908; Paterson's Trustees v. Paterson, 1909 S.C. 485, 46 S.L.R. 406; and Mackinnon's Trustees v. Mackinnon, 1909 S.C. 1041, 46 S.L.R. 792. A bequest for religious purposes if limited by certain qualifying words was sufficiently definite to be valid— Bannerman's Trustees v. Brodie, 1915 S.C. 398, 52 S.L.R. 315.

At advising—