Scottish Court of Session Decisions

James Halliday Haining and another, the testamentary trustees of Frederick Mansell Renouf, of Royal Bank House, Hawick, first parties; the above-mentioned James Halliday Haining, who was a stepson of the testator, as an individual, second party; Orlando John Renouf and Alice Mary Renouf or Bricknell, a brother and sister of the testator, third parties; Albert James Renouf, a brother of the testator, fourth party; James Chapell and others, fifth parties; and Alice Chapell or Smith and others, sixth parties—the parties of the fifth and sixth part being nephews and nieces and residuary legatees of the testator—brought a Special Case to determine questions relating to the rights of the parties under the trust-disposition and settlement of Frederick Mansell Renouf.

By his general trust-disposition and settlement the testator conveyed to the trustees therein mentioned “all my means and estate, moveable or otherwise, of every kind and description wheresoever situated and belonging to me at my death or after my decease,” for, inter alia, the following purposes—“2nd, I wish my trustees to pay out of the income of my estate the salaries of two native missionaries chosen of them, for preaching the gospel of Jesus Christ my Lord among the heathen: Also that on the winding of my estate that the trustees make provision for these salaries to be continued to the societies they represent.” The testator further provided that in certain contingencies the trustees should have power to withdraw the shares of legatees “and put the money so withdrawn to the increase the amount already given to preach

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the gospel of Jesus Christ by Christian native preachers.” The testator further gave his trustees power in the event of legatees failing to claim their shares within a certain time “to use the said share or shares for preaching the gospel of Jesus Christ as already named for foreign lands.”

The Case stated—“1. The said Frederick Mansell Renouf left estate of the value of £4465, inclusive of half of the properties and investments hereinafter mentioned. The gross income of the estate, inclusive as aforesaid, amounts to £211, 2s. 3d., subject to the deduction of expenses of administration and other outgoings. If the one-half of the properties and investments referred to is deducted, the value of the estate is about £2200, and the gross income thereof about £113. 5. The testator provided that the remainder of the income of his estate [after payment of the foregoing bequest] should be paid by his trustees to the parties of the third part (a brother and sister of the testator) in equal shares during their lifetime. 8. At the testator's death the following documents, inter alia (except the disposition No. 1 and the bonds Nos. 2, 3, and 4) were in the custody of the second party. The said disposition and said three bonds were in the custody of Messrs Haddon & Turnbull, solicitors, Hawick, who acted as agents both for Mr and Mrs Renouf and for the second party:—(1) Disposition of Salthall superiority by Mr John Wilson's trustees, recorded 6th December 1897, in favour of ‘Frederick Mansell Renouf and James Halliday Haining jointly, and to the survivor of them and his heirs.’ (2) Bond and disposition in security, dated 13th May and recorded 16th May 1899, for £165, over subjects 11 Dalkeith Place, Hawick, by George Telfer, payable to ‘Frederick Mansell Renouf and James Halliday Haining, or the survivor of them, and the executors of such survivor, and to their or his assignees whomsoever,’ the balance due thereon at testator's death being £150. (3) Bond and disposition in security, dated 25th May and recorded 28th May 1907, for £210, over subjects at 8 Ettrick Terrace, Hawick, by Robert Anderson, payable to Frederick Mansell Renouf and James Halliday Haining, or the survivor of them, and the executors of such survivor, and to their or his assignees whomsoever,’ the balance due thereon at testator's death being £155, 12s. (4) Bond and disposition in security, dated 15th November and recorded 18th November 1902, for £200 over subjects at 7 Langholm Street, New-castleton, by John Johnstone, payable to ‘Frederick Mansell Renouf and James Halliday Haining, or the survivor of them, and the executors of such survivor, and to their or his assignees whomsoever.’ (5) Bond and disposition in security, dated 15th May and recorded 22nd May 1908, for £700 over subjects 23 High Street, Hawick, by Miss Henrietta S. Robison, payable to ‘Frederick Mansell Renouf and James Halliday Haining jointly, and the survivor of them, and their or his executors or assignees whomsoever,’ the balance due thereon at testator's death being £450…. In all of the said documents it is stated that the money paid or invested was so paid or invested by the testator and the second party. In point of fact the money in each case was paid wholly by Mrs Agnes Robison Haining or Renouf out of her own funds, and the destinations in the deeds were inserted on her instructions; but the second party arranged with her to refund, and did refund, to her half of the price of Salthall superiority (No. 1). The said Mrs Agnes Robison Haining or Renouf, who was the mother of the second party by her first marriage, and the wife of the testator, died on 24th October 1911, leaving a disposition and settlement dated 25th October 1899, by which she bequeathed certain subjects to the second party and disponed her whole other means and estate to the said Frederick Mansell Renouf, and appointed him and the second party her executors. The said disposition and settlement contains no reference to the investments and subjects mentioned in this article. In all cases in which any part of the funds previously invested as above was repaid, the money was paid to the testator and the second party, and they granted a receipt for the same.… The parties are agreed that there is no evidence bearing on the questions submitted as to all the said investments except the terms of the said destinations, the facts herein set forth, and the testator's said general disposition and settlement. The parties are also agreed that one half of the sums contained in the said investments belongs to the second party, but a question has arisen whether the remaining half has passed under the testator's said general disposition and settlement to the first parties, or whether it now belongs to the second party in terms of the said destinations. 9. The said holograph general disposition and settlement of the testator contains a general conveyance of his whole estate to the trustees therein mentioned, and in the fourth purpose a direction to them after the death of the second party ‘to call up all bonds and mortgages and to sell feus and stocks if necessary on division.’ The third purpose provides that on the death of the said Orlando John Renouf and Alice Mary Renouf or Bricknell the trustees are to pay to the second party ‘the income derived from the following bonds and feus—11 Dalkeith Place, 8 Ettrick Terrace, 18 Glebe View, and 6 Ladylaw Place, and feu from Salthaugh, all situated within the burgh of Hawick in the county of Roxburghshire, Scotland; likewise bond on 7 Langholm Place, New-castleton, in the same county.’ The said bond on 18 Glebe View and half of the property No. 6 Ladylaw Place belonged to the testator alone, the titles standing in his own name, and no question arises as to them in this case. (The said general disposition and settlement makes no reference to the bond and disposition in security by Miss Henrietta S. Robison for £700 in favour of the testator and the said James Halliday Haining) (No. 5).”

The questions of law were, inter alia—“(1) Is the provision in regard to the appointment of ‘two native missionaries for preaching

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the Gospel of Jesus Christ my Lord among, the heathen’ void from uncertainty? (3) Has the one half which belonged to the testator of the Salthall superiority and of the respective sums contained in the bonds and dispositions in security Nos. 2 to 5 (inclusive), mentioned in article 8, or any of them, passed ( a) to the first parties in terms of the testator's said general disposition and settlement? or ( b) to the second party in terms of the destinations in the disposition of the said superiority and in the said bonds and dispositions in security?”

At the debate in the Second Division it was made matter of admission between the parties that the testator was a domiciled Scotsman belonging to the Wesleyan Methodist body.

On the first question of law—Argued for the first parties—The bequest was not void from uncertainty. A bequest to foreign missions was good, in respect that it was a bequest to charities, and it applied to any of the activities of these bodies— Allan's Executor v. Allan, 1908 S.C. 807, 45 S.L.R. 579. The word “charity” was not restricted to relief from poverty but had a wider meaning both in English and Scots law— Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] AC 531. A bequest to a limited class was not invalidated by the fact that it fell within the larger class “religious.” Allan's Executor v. Allan was approved by the House of Lords in Wordie's Trustees v. Wordie, 1916 S.C. (H.L.) 126, per Lord Shaw at p. 130, 53 S.L.R. 291. But even if this bequest could not be described as a charitable purpose, it did not follow that it failed. The rule of Lord Chancellor Lyndhurst in Crichton v. Grierson, 1828, 3 W. & S. 329, showed that if the class was defined the bequest was valid, and the selection of recipients within the class could be left to the trustees— Turnbull's Trustees v. Lord Advocate, 1917 S.C. 591, 54 S.L.R. 501, in the House of Lords 55 S.L.R. 208. Charitable objects were admitted because they constituted a particular class susceptible of definition. Religious objects were excluded because they were not susceptible of definition— Blair v. Duncan, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212; Macintyre v. Grimond's Trustees, 1905, 7 F (HL) 90, 42 S.L.R. 466. In the cases referred to by Lord Chancellor Lyndhurst in Crichton v. Grierson, where the bequest had been sustained, were a a number of objects which could not be called charitable, e.g., the testator's “blood relations,” “poorest friends,” &c. The word “heathen” similarly connoted a definite class. According to the Oxford Dictionary it meant “one who holds a religious belief which is neither Christian, Jewish, nor Mohammedan.” “Native” meant natives of the country which was to be converted. The missionaries in question must be servants of some existing society which was carrying on its work by native teachers. The fact that the amount of the bequest was not given did not invalidate the bequest— Macduff v. Spence's Trustees, 1909 S.C. 178, 46 S.L.R. 135; Adam's Trustees v. Adam and others, 1908, 16 S.L.T. 144.

Argued for the third, fifth, and sixth parties—The provision as to native Christian missionaries was both too vague and too wide. It was so wide that it amounted to giving the trustees power to make a will for the testator. Further, the amount of the bequest was not mentioned. It was, further, not clear what societies were favoured, whether Scotch or not. Unless it could be established that this was a charitable bequest, it must be refused effect— Allan's Executor v. Allan, 1908 S.C. 807, per Lord Kinnear at p. 814, 45 S.L.R. 579. The law of Scotland as to charitable purposes had been laid down in Baird's Trustees v. Lord Advocate, 1885, 15 R. 682, 25 S.L.R. 533; Blair v. Duncan, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212; and Macintyre v. Grimond's Trustees, 1904, 6 F. 285, at p. 293, 41 S.L.R. 225, 7 F (HL) 90, 42 S.L.R. 466. The present case was the counterpart of Macintyre v. Grimond's Trustees, and was directly governed by it. The Oxford Dictionary definition of “heathen,” even if accepted, was too wide to apply. Such a definition would include the most highly developed and cultured people of India, and would include a writer such as Tagore. But it was not authoritative. The original definition of “heathen” was still wider. This was the definition in the Gospels, which in the vernacular was ἐΘυìχος and this was given in Liddell and Scott's Dictionary as meaning (1) national, and (2) as almost equivalent to Βαρβαςος i.e., foreign gentile. In the German translation the word was similar to the English, viz., heide, and this meant pagan or gentile. There was no reason why it should not include non-religious in civilised countries. Foreign missions were not merely intellectual, but social and medical. In the present case the Court was dealing with the purely intellectual side, and these provisions were too wide to be applied.

On the third question of law—Argued for the first and third parties—The destinations in the bonds and dispositions in security and the disposition of the Salthall superiority had been evacuated by the general settlement— Thoms v. Thoms, 1868, 6 Macph. 704, per Lord Benholme and Lord Neaves at p. 723, Lord Kinloch at p. 728, and Lord Barcaple at p. 737, 5 S.L.R. 418. In Campbell v. Campbell, 1880, 7 R. (H.L.) 100, 17 S.L.R. 807, the case of Thoms was approved as accurately stating the law. The testator's settlement was a universal disposition, applying equally to heritage and moveables. The doctrine of Campbell's case had also been applied to moveables— Buchan v. Porteous, 1879, 7 R. 211, per Lord Gifford at p. 214, 17 S.L.R. 90. This rule of construction was based on the intention of the testator— Connell's Trustees v. Connell's Trustees, 1886, 13 R. 1175, 23 S.L.R. 857. The doctrine laid down in Thoms v. Thoms, cit., and Campbell v. Campbell, cit., had been applied in the most recent cases— Perrett's Trustees v. Perrett, 1909 S.C. 522, and per Lord Dunedin at p. 527, 46 S.L.R. 453, on the effect of a general disposition revoking a special destination not made by the testator

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himself— Turnbull's Trustees v. Robertson, 1911 S.C. 1288, 48 S.L.R. 1033; Henderson's Trustees, Petitioners, 1911 S.C. 525, 48 S.L.R. 424. There was nothing in the terms of the destination to prevent the testator exercising this power. If it could be shown that in any one instance the terms were contractual the result might be otherwise, but that was not the case. The argument on behalf of the second party confused the effect of the destination if left to itself and how far it could be affected by the debts or deeds of parties interested. All the cases founded on by the second party included an element of contract. In the present case that could not be said except possibly in the case of Salthall. In Riddels v. Scott, 1747, Mor. 4203, cit. sup., the destination was very special, and it was difficult to make out from the report the precise ground of decision. In Bisset v. Walker, Mor. Deathbed, App. No. 2, the destination was to two sisters and the longest liver, the sisters providing the funds. In Brown v. Advocate-General, 1852, 1 Macq. 79, the destination was fortified by a clause of warrandice, and was also clearly a case of contract. In Burrowes v. M'Farquhar's Trustees, 1842, 4 D. 1484, the real point was as to the effect of a special destination made by the same person as made the general settlement. This case fell into the very limited class of conjunct fee and liferent to husband and wife, the husband providing the funds. In Perrett's Trustees, cit., contract was inferred from the fact that each of the parties contributed one half. The case was quite different where A made a destination to B and C equally. That was not contract. Destinations of this character depended so much on the exact words used that it was very difficult to extend a decision in one case to another where the destination was only slightly different. The whole foundation of the second party's argument under this head was in Erskine, iii, 8, 35, which dealt with a destination to A and B jointly and the survivor. This, however, could not be used to interpret a destination to A and B without the word “jointly “and the survivor. Further, it did not mean that one of the joint holders could not innovate gratuitously on his share. It was anomalous that he could convey it to his creditors and not by his will. What the passage in Erskine really meant was that if the destination was unrecalled the property passed as stated by Erskine. The passage from Bell's Commentaries (M'Laren's ed.), p. 62, founded on by the second party, was really in favour of the trustees' contention. The inference therefore, was, that apart from contract there was no limitation on the right of the disponee to dispose of his share.

Argued for the second party—If the testator could competently revoke the special destinations, he had, no doubt, effectively done so, but it was not in his power to do so. It was settled beyond question that a destination to A and B jointly and the survivor and his heirs conferred a fee on the survivor which could not be gratuitously defeated by the act or will of the predeceaser—Ersk. Inst, iii, 8, 35; Duff's Feudal Conveyancing, p. 321, sec. 243, illus. 4; Bell's Comm. (M'Laren's ed.) i, p. 62; Bell's Lects. on Conveyancing, ii, 843; Riddels v. Scott, 1747, M. 4203; Bisset v. Walker, 1799, Mor. Deathbed App. No. 2; Forrester v. Forrester's Trustees, 1835, 1 S. & M. 441; Burrowes v. M'Farquhar's Trustees, 1842, 4 D. 1484; Brown v. Advocate-General, 1852, 1 Macq. 79, per Lord Chan. St Leonards, pp. 89–91; Walker v. Galbraith, 1895, 23 R. 347, 33 S.L.R. 246; Perret's Trustees v. Perret, cit. sup., per Lord Kinnear, who based his opinion on the terms of the destination only, and whose view was supported by the Institutional writers referred to. In such destinations assignees meant assignees of the survivor— Burrowes v. M'Farquhar's Trustees, cit. sup. The lady when she took the destination in the names of her husband and son must have intended them to receive their proper legal construction. This principle was generally applicable whatever might be the form of the deed— Burrowes v. M'Farquhar's Trustees, cit. sup., per Lord Cuninghame. In the case of the Salthall superiority the rule was clearly applicable, and the destination in the disposition clearly embodied a contract between the parties—mother and son. But the rule also covered the destinations in the bonds and dispositions in security, which were only moveable quoad succession, even though the word “jointly” was not used in them There was no force in the words “conjunctly,” “jointly,” &c. per se. It was the meaning and sense and not the exact words used which was important. Duff used the word “conjunctly” and Bell the word “jointly,” but the effect was the same. In none of the cases could it be said that the source from which the money came was of the slightest importance. The insertion of the word “survivor” by the donor was equivalent to a condition and might also be defined as a contract, but a contract, not between the fiars, but between the donor and the donee which could not be gratuitously defeated. It was said that “spouses” formed a class apart, but this simply meant that the husband being the dignior persona was presumed to be the fiar. The same construction was given to the analogous case of a clause of return in deeds— Mackay v. Campbell's Trustees, 1835, 13 S. 246, and per Lord Medwyn at p. 250; Barr's Trustees v. Barr's Trustees, 1891, 18 R. 541, 28 S.L.R. 387.

At advising—