Scottish Court of Session Decisions

The Church of Scotland Ministers' Widows' Fund Act 1814 (54 Geo. III, cap. clxix), section 9, is quoted supra in rubric.

The Trustees of the Church of Scotland Ministers' Widows' Fund incorporated by the Church of Scotland Ministers' Widows' Fund Act 1890 (53 and 54 Vict. cap. cxxiv), first parties, and the Reverend David Ness, M.A., and others as a committee appointed by the Presbytery of Glasgow to represent it, second parties, brought a Special Case for the determination of questions relating to the disposal of the income of a legacy left by the Reverend Robert Paton, D.D., during the vacancy of St David's (Ramshorn) Parish Church in Glasgow owing to the translation of the minister.

A similar case was brought by the first parties and the Reverend John A. Swan, B.D., and others as a committee of the Kirk-Session of St David's Parish Church, appointed by the Kirk-Session to represent it, second parties, for the determination of similar questions relating to a bequest by George Robb.

The cases were heard together.

Paton's Case.—The Reverend Robert Paton, D.D., left a will dated 4th July 1870 which provided, inter alia—“I bequeath to the Presbytery of Glasgow £300, the interest to be added to the stipend of the minister of St David's Parish, Glasgow.”

The Special Case set forth—“3. After the death of the said Robert Paton the said sum of £300 was, on or about 8th January 1879, paid by his trustees to the Presbytery of Glasgow. Since the last-mentioned date the said Presbytery of Glasgow have held the said sum, and collected the income thereof, which amounts to £12, 14s. per annum, and accrues to them at four terms in the year, Candlemas, Whitsunday, Lammas, and Martinmas, and paid the said income to the minister of said church for the time being, once a year in the month of February.… 5. On or about 24th September 1914 the said parish became vacant by the translation of the Reverend Ernest Sherwood Gunson to the parish of New Monkland, in the Presbytery of Hamilton, and continued vacant till 13th April 1915. Payment of a year's income of the said legacy was made to the said Rev. Ernest Sherwood Gunson in February 1914, and thereafter half a year's income was paid to him at the date of his vacating the benefice.”

The first parties' contention was “that the income of the legacy in question forms part of the stipend of the benefice in the sense of the Act 54 Geo. III, cap. 169, and that in respect that the benefice was vacant at the term of Michaelmas 1914, one half of a year's income, amounting to the sum of £6, 7s., is vacant stipend in the sense of section 9 of the Act 54 Geo. III, cap. 169, and is payable to the first parties for the purposes of the fund administered by them.”

The second parties' contention was “that said income is not vacant stipend in the sense of said Act, and is not payable to the first parties.”

The questions for the opinion of the Court included, inter alia—“3. In respect that the benefice in question was vacant at Michaelmas 1914, is one-half of a year's income of the said legacy payable to the first parties for the purposes of the Acts relating to the Church of Scotland Ministers' Widows' Fund?”

Robb's Case.—George Robb, sometime carting superintendent of the Caledonian Railway Company, left a trust-disposition and settlement which directed his trustees “to pay to the Kirk-Session of Ramshorn Church, Glasgow, the sum of One thousand two hundred pounds, the free annual reve

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nue of which shall be paid by the Kirk-Session to the minister of the church for the time being.”

The Special Case set forth—“3. After the death of the said George Robb the said sum of £1200 was on or about 20th August 1909 paid by his trustees to the Kirk-Session of the said St David's (Ramshorn) Church (commonly known as the Ramshorn Church of Glasgow). Since the last-mentioned date the said Kirk-Session have held the said sum and collected the income thereof, which amounts to £42 per annum, and accrues to them at 30th June and 31st December annually, and paid the said income to the minister of the said church for the time being at 1st January and 1st July in each year by equal portions. … 5. On or about 24th September 1914 the said parish became vacant by the translation of the Rev. Ernest Sherwood Gunson to the parish of New Monkland in the presbytery of Hamilton, and remained vacant till 13th April 1915. At 1st January 1915 a proportion of the income of £21 accruing at 31st December 1914, corresponding to the period from 1st July to 24th September 1914, was paid by the Kirk-Session to the said Reverend Ernest Sherwood Gunson.”

The contentions of parties were similar to, and the questions of law were identical with, those in the Paton case.

Argued for the first parties—In the Paton Bequest the income of the fund was earmarked as stipend. There was no express bequest to the minister, and no provision for accumulation or application of the fund in any other way except as stipend. Further, the testator was a minister who presumably wished the fund when there was no minister in the cure to be treated in the same way as stipend. Accordingly the presumption was that the first parties being entitled to vacant stipend in the ordinary sense were also entitled to the income of this fund when the parish was vacant. In the Robb Bequest the income was not earmarked as stipend, but unless it fell to be treated as stipend when the cure was vacant it was undisposed of. In both cases the income was part of the permanent endowment of the church. Had the income been ordinary stipend payable out of teind during a vacancy those parties would have been entitled to it, but stipend was not limited to stipend paid out of teind. It included all the permanent annual fruits of the benefice—Duncan, Parochial Ecclesiastical Law, 1903 ed., pp. 230, 289, and 296. It might be derived from private mortifications such as the present— ibid. p. 298; Ersk. Inst., i, 5, 23. In a quoad sacra parish the vacant stipend went to the Widows' Fund— Grant v. Macintyre, 1849, 11 D. 1370. The stipend of a quoad sacra church derived from funds privately raised had been held when vacant to go to the Widows' Fund— Cheyne v. Cook, 1863, 1 Macph. 963; M'Lagan v. Brown, 1887, 14 R. 1083, 24 S.L.R. 759. “Stipend” and “benefice” were used as synonyms in the present connection—Act 1644, cap. 20. Stipend had been treated as equivalent to the “fruits of the benefice”— Gordon v. Earl of Kinnoull, 1845, 4 Bell's App. 126, per Lord Cottenham at p. 137. Where the stipend was derived from a parliamentary grant as in parliamentary churches it was held during a vacancy to go to the Widows' Fund as being a permanent endowment of the Church— Gordon v. Trustees of Ministers' Widows' Fund, 1836, 14 S. 509. Irvine v. Trustees of the Ministers' Widows' Fund, 1838, 16 S. 1024, was not a decision upon the nature of the stipend derived from such funds, but merely decided that the ministers in question did not fall within the class to which the Widows' Fund statutes applied. The same principles applied to burghal churches as to parliamentary churches, the permanent endowment being treated as stipend— Dundee Magistrates v. Nicol, 1829, 8 S. 66; Stirling Magistrates v. Gordon, 1837, 15 S. 657. As a matter of history the patron founding the benefice originally got the vacant stipend, but later he became bound to apply that to pious uses—Act 1685, cap. 18. If the second parties were right only part of the vacant stipend would be applied to pious uses. The rest would fall into the heritors' own hands. The first parties were entitled to half of a year's income of the funds in question. As regards glebes the rule messis sequitur sementem applied.

Argued for the second parties—“Vacant stipend” in the Act 54 Geo. III, cap. 169, sec. 9, meant stipend proper and not emoluments derived from private mortifications. The latter must be dealt with according to the testator's intention. Stipend was also applied to income derived from the permanent endowment of the benefice at the date of its erection—Duncan, Parochial Ecclesiastical Law, 1903 ed., p. 290. In a quoad sacra church the stipend was the annual proceeds of the permanent endowment of the church existing at the date of its erection—Division of Parishes (Scotland) Act 1844 (7 and 8 Vict. cap. 44), sec. 8. Income derived from private mortifications such as the present was regarded as a “supplementary provision”—Duncan, Parochial Ecclesiastical Law, p. 298. In all the cases the vacant stipend not derived from teind falling to the Widows' Fund had been limited to stipend derived from the original permanently fixed endowment of the church. A private mortification not forming part of the permanent original endowment of the church did not fall to the Widows' Fund during a vacancy— Cheyne v. Cook ( cit.) at p. 964, and per the Lord Ordinary (Jerviswoode) at p. 967. The dicta of the Lord Justice-Clerk (Inglis) at p. 970 had reference to stipend derived from the permanent endowment of the church at its erection. Gratuitously paid sums added to the stipend of the minister were not regarded as attached to the benefice— Cheyne v. Dundee Magistrates, 1866, 4 Macph. 1002, per Lord Justice-Clerk (Inglis) at p. 1005, 2 S.L.R. 157. A private bequest was not taken into consideration in fixing the amount of the stipend— Rainie v. Magistrates of Newton-on-Ayr, 1897, 24 R. 606, per Lord Stormonth Darling (Ordinary) at p. 609, 34 S.L.R. 447. Neither was the revenue derived from feuing the glebe— Minister v. Heritors of Kilmalcolm, 1875, 3 R. 32, 13 S.L.R. 16. Income derived

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from the glebe was not regarded aspart of the stipend—Ersk. Inst., i, 5, 14. The feu-duties derived from feus of the glebe were specially dealt with during a vacancy by statute—Glebe Land (Scotland) Act 1866 (29 and 30 Vict. cap. 71), sec. 15. The questions should be answered in the negative.

At advising—