Scottish Court of Session Decisions

A Special Case was presented by James Milne, C. A., Aberdeen, and others, the trustees acting under the last will and testament of the late John Symmers, shipmaster, Aberdeen, who died on March 28, 1915, firstparties, and James Adam Symmers, his only surviving child, second party, to decide questions as to the disposal of the residue of the trust estate.

The last will and testament contained, inter alia, the following clause:—“( Second) I leave and bequeath to my son James Adam Symmers, master mariner, the sum of Two hundred pounds, free of legacy duty, payable at the first term of Whitsunday or Martinmas occurring six months after my death, also my grandfather clock and the box containing the binocular glasses presented to me by the late Emperor William of Germany, but in the event of my said son predeceasing me then my trustees shall deliver the said clock and binocular glasses to my eldest grandson John Symmers on his attaining twenty-one years of age. ( Third) To my said grandson John Symmers I bequeath my gold watch and chain with French coin attached, and to my granddaughter Doreen Isabel Adam Symmers I bequeath the large Indian shawl and any jewellery which belonged to my wife and which may be in my possession at my death, and my trustees shall deliver same to said grandchildren on their respectively attaining the age of twenty-one years. … And ( Seventh) with regard to the residue of my estate, my trustees shall divide the same equally among my grandchildren, and shall pay the same on their respectively reaching the age of twenty-seven years, with power to my trustees to apply the income of any grandchild's share for their maintenance and education until they reach the said age of twenty-seven years; Declaring always that the above bequests and provisions contained in the (Second), (Third), and (Seventh) purposes hereof are in lieu of and shall be accepted by my said son James Adam Symmers as in full satisfaction of his legal rights, but in the event of his not agreeing to accept these provisions but electing to claim said rights the bequests and provisions contained in the (Second), (Third), and (Seventh) purposes hereof shall lapse, and whatever residue there may be after settlement of my son's claim and payment of the legacies and satisfaction of the bequests contained in the (First), (Fifth), and (Sixth) purposes above written, I instruct my trustees to realise and divide same amongst such charitable institutions or deserving agencies in Aberdeen and Stonehaven as they may select, and in such proportions and at such times as they may think proper.”

The testator was predeceased by his wife, but was survived by one child, the second party to the case, who, having elected to receive payment of legitim in satisfaction of all claims on the testator's estate, granted a discharge in favour of the trustees, which, after narrating the second, third, and seventh purposes of the will, contained the following clause:—“Further, considering that my father died on the twenty-eighth day of March Nineteen hundred and fifteen, predeceased by his wife my mother Isabel Adam or Symmers, and that I as the only surviving child have elected to claim my legal rights on the estate of my said father, thereby renouncing the provisions in my favour contained in the said last will and testament: And further, considering that after various communings the sum of Two thousand and eighteen pounds five shillings has been adjusted as the amount of the legitim fund (the whole of which is payable to me as the only surviving child of the said John Symmers as aforesaid) including interest accrued thereon to thirtieth November Nineteen hundred and fifteen: And now seeing that the said trustees have made payment to me of said sum of Two thousand and eighteen pounds five shillings partly by a cash payment of One thousand nine hundred and forty-six pounds, and partly by transfer to me of the following stocks and shares which I accept as equivalent to cash, viz., ( a) Fifty-six pounds ordinary stock Scottish Northern Investment Trust Limited, ( b) Twenty pounds ordinary stock Second Scottish Northern Investment Trust Limited, and ( c) twenty shares of the Scottish North Eastern Investment Company Limited: And which sum of Two thousand and eighteen pounds five shillings I hereby accept in full satisfaction of all I can ask or claim out of my said father's effects: Therefore I do hereby exoner and discharge the said James Milne, William Hurry, Robert Adams Forrest Davidson, and William M'Queen Smith, and their respective heirs, executors, and successors, and all others the representatives of my said father, of all sums of money or other effects which belonged or were due to me or which I could have asked or claimed out of the estate and effects of my said deceased father, and of their whole actings, transactions, and intromissions with said moveable estate; and I oblige myself, my heirs and successors, to warrant this discharge at all hands.”

The Case stated, inter alia—“The first parties maintain that as the second party has elected to claim his legal rights the direction in the seventh purpose of the said last will and testament as to the realisation and division of the said residue among such charitable institutions or deserving agencies in Aberdeen or Stonehaven as the first parties may select has come into operation, that the said direction is valid and effectual, and that the said residue falls to be disposed of by the first parties in terms thereof. The first parties further maintain that in any event the second party, by the terms of the said discharge granted by him, is barred from challenging the validity of the said direction and insisting in his present claim. 9. The second party maintains that the direction in the said seventh purpose of the said last will and testament as to the realisation

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and division of the residue of the estate among such charitable institutions or deserving agencies in Aberdeen or Stonehaven as the first parties may select is void and ineffectual by reason of uncertainty, and that the sum so directed to be divided accordingly falls into intestacy, and that he as heir ab intestato is entitled to payment and conveyance therein. He further maintains that he is not barred from maintaining his said claim as heir ab intestato by reason of his having claimed his legal rights and granted the said discharge.”

The questions of law for the opinion and judgment of the Court were—“1. Is the second party barred from challenging the validity of the said direction in the seventh purpose of the said last will and testament and insisting in his present claim? If not, 2. Is the said direction as to the realisation and division of the residue of the estate among such charitable institutions or deserving agencies in Aberdeen or Stonehaven as the first parties may select valid and effectual, and does the residue in the hands of the first parties fall to be disposed of by them in terms thereof? or 3. Is the said direction void and ineffectual by reason of uncertainty? 4. In the event of the preceding question being answered in the affirmative, does the said residue fall to be made over by the first parties to the second party?”

Argued for the first parties—(1) The bequest was not void by reason of uncertainty. The Court ought, if at all possible, to allow the testator's intentions to be carried out— Turnbull's Trustees v. Lord Advocate, 55 S.L.R. 208, per Finlay, L.C. The nature of the bequest was amply specified by the word “charitable.” There was no great difference between a deserving agency and a charitable institution. An “agency” was merely a wider term, which might include an “institution,” which again might be a “deserving” one although not a “charitable” one. In cases such as Blair v. Duncan, (1901) 4 F. (H.L.) 1, 39 S.L.R. 212, the bequest had been held to be void by reason of uncertainty, because the uncertainty had been created by the use of the word “purpose,” but such a case was to be distinguished from the present one. The fact that Aberdeen and Stonehaven had been specified as the towns where the deserving agencies or charitable institutions to be benefited must be situated was also a point in favour of the validity of the bequest— Shaw's Trustees v. Esson's Trustees, (1905) 8 F. 52, 43 S.L.R. 21. The following cases were also cited:— Laurie v. Brown, (1911) 1 S.L.T. 84; 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. (2) The discharge was in the widest possible terms, and put the case on a different footing from the old cases of Anderson v. Anderson, (1743) M. 5054, and Hepburn v. Hepburn, (1785) M. 5056. The second party was, in respect of the discharge granted to the trustees on receiving payment of his legitim, barred from insisting on his construction of the words in the settlement. Counsel referred to Ersk. Inst., iii, 4, 9; Bell's Prin, section 583. Naismith v. Boyes, (1899) 1 F. (H.L.) 79, 36 S.L.R. 973, was distinguishable from the present case, as it turned on the construction of a clause in a testator's will.

Argued for the second party—(1) The bequest was void by reason of uncertainty. The testator had clearly shown that he desired to differentiate between “deserving agencies” and “charitable institutions.” The term “public purposes” had been held to be too vague, and therefore the phrase “deserving agencies,” which was still vaguer, ought to be similarly regarded. The terms used must not have so wide a meaning as to render the selection of a particular class impossible— Turnbull's Trustees v. Lord Advocate ( cit.). The institutions and agencies to be benefited by the bequest were not limited to those in existence at the time at which the bequest was made. So long as they satisfied the clearly expressed wishes of the testator it did not matter if they originated at a date subsequent to the making of the bequest. Counsel also cited in re Sutton, (1885) 28 Ch. D. 464; Grimond or Macintyre v. Grimond's Trustees, (1904) 7 F. (H.L.) 90, 42 S.L.R. 466; Shaw's Trustees v. Esson's Trustees ( cit.); Hay's Trustees v. Baillie ( cit.). (2) The second party could only grant a valid discharge in respect of what fell to him under the trust purposes. It could not be in respect of what should accrue to him by force of law. The discharge need not be reduced. The case of Dickson v. Halbert, (1854) 16 D. 586, where the discharge was granted in ignorance of claims, was distinguishable. Counsel also referred to Armour v. Glasgow Royal Infirmary, 1909 S.C. 916, 46 S.L.R. 740.