Scottish Court of Session Decisions

James Taggart, Provost of Aberdeen, and others, the trustees acting under a deed of settlement, dated 24th July 1844, and numerous codicils, granted by George, James, and Alexander Chalmers, first parties, and the School Board of the Parish of Turriff and others, being the recipients of benefits under the deed of settlement, second parties, brought a Special Case to decide whether a provision in the deed of settlement was void from uncertainty.

The deed of settlement provided, inter alia, for the annual payment of an annuity of £20 to the treasurer of the House of Refuge in Aberdeen for behoof of that institution. It contained the following direction:—“Declaring that in the event

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of any of the said institutions to which bequests are made as above ceasing to exist and being discontinued, then and in that case it shall be in the power of our said trustees to apply the said bequests for such other charitable purpose or educational scheme for the poor as they may deem fit and proper.”

The Case stated—“7. In 1885, under the provisions of the Aberdeen Reformatory and Industrial Schools Act 1885, there were amalgamated into one trust the Oldmill Reformatory for boys, the Mount Street Reformatory for girls, the Industrial School for boys at Oakbank, the Industrial School for girls at Whitehill, and the said House of Refuge.… The said House of Refuge ceased to exist and was discontinued in or about June 1885.… The directors of the Aberdeen Reformatory and Industrial Schools and Houses of Refuge have intimated by letter to the factor, dated 23rd September 1913, that they do not intend to make any application for the said annuity and may be held as having acquiesced in its discontinuance from the date thereof.…”

These questions were, inter alia, submitted—“1. Are the first parties entitled to apply the annuity of £20 bequeathed to the House of Refuge in Aberdeen in respect of its discontinuance to such other charitable purpose or educational scheme for the poor as they may deem fit and proper? 3. Is the provision in question void from uncertainty?”

Argued for the first parties—This bequest was not void from uncertainty. It had been established that the Courts would sustain any bequest for a charitable purpose, and an educational scheme for the poor was just one particular branch of charity— Milne's Executors v. Aberdeen University Court, (1905) 7 F. 642, 42 S.L.R. 533. As the bequests were really for charity the mode of their application was not of the substance of the legacy— Mayor of Lyons v. Advocate-General of Bengal, (1876) 1 A.C. 91, at p. 113.

Argued for the second parties—A bequest for purposes of education even of the poor was not a bequest for a charity— M'Conochie's Trustees v. M'Conochie, 1909 SC 1046, 46 S.L.R. 707. If it has been held that “religious” purposes was too vague, then a fortiori “educational” purposes was too uncertain also. The trustees were only entitled to apply the funds to charitable purposes in the strictest sense of the term, as the testators had in their wording of the deed carefully delimited their application.