Scottish Court of Session Decisions

At advising on 25th March 1949,—

LORD JUSTICE-CLERK (Thomson).—The decision of this case turns on two elementary propositions. First, in order to make a valid will, a testator must sufficiently indicate his intention that on his death certain subjects are to pass to certain objects. Second, a testator must make his own will; he cannot confide the making of it to another person. This latter proposition is subject to the qualification that, if a testator sufficiently designates a class of objects whom he desires to benefit, it may be left to another person to select individual beneficiaries from within the designated class. This qualification arises from the general principle that a man must make his own will. He still in the view of the law makes his own will if the class of objects is sufficiently designated, so that the alienus is in effect carrying out the testator's intention within limits defined by the testator. It is well established that charity is such a class. But I do not see that in this particular case it matters that the class of objects is charity. It seems to me that the same principles fall to be applied, provided the class is one which the law recognises as sufficiently designated to let in the arbitrium alienum (see per Lord Robertson in Blair v. Duncan and Lord Kinnear in Allan's Executor). The word "charity" has performed its function when it has fixed the class. I do not seek to invoke the favour which the law accords to charity for any further purpose.

The issue in the present case seems to me to be, Is it essential to the validity of a will per alienum arbitrium that not only must the class of objects be sufficiently designated but that the alienus should be personally chosen by the testator? If delectus personæ is essential, the failure to nominate the alienus is fatal. There are no technical reasons for affirming the necessity of the testator's making a personal choice. The will does not lack formal validity if the testator is silent. If personal choice is essential it must be on the ground that the alienus is in some real sense an extension of the testator's personality. In the case of a nomination of a relation or a friend, one can see that such a person might be so familiar with the testator's views and outlook that he would carry on broadly on the lines which the testator might himself have been expected to have done. But the testator's idea in nominating the alienus may be to surrender his own judgment to the alienus and to prefer his arbitrament to his own. This of course is still the selection by the testator of a known alienus in whom he reposes confidence and whom he leaves to deal with the matter according to his own ideas. To that extent the idea of an extension of the testator's personality is still present. The testator is still operating through the medium of a known and trusted agent. Again, there may be the selection of an alienus as the holder of an office. If a testator nominated the Dean of the Faculty of Advocates ex officio to select among a properly designated class, such a bequest would be good. But the element of personal choice becomes almost negligible. All that is left to the testator is the belief, well founded no doubt, that the Faculty will continue to elect as their Dean men of eminence and integrity, but his nomination of the Dean of Faculty can leave him with little confidence that any particular Dean will make any particular selection within the class. One can think of other illustrations where the possibility of the testator's own personal views being carried out was negligible and where even his confidence in the body which was to elect his ex officio trustee might be misplaced. One may well ask, Why should a testator who does not desire to make a selection from a class himself, either because he has not the time or the knowledge or the confidence in his own judgment, not be content to leave the selection to someone appointed by the Supreme Court of the country to which he belongs?

The plain fact of the matter is that the designation of the class is the important thing. By designating a class in preference to making a personal selection of particular members of that class, what the testator in effect says is, I am prepared to favour every member of that class. In these circumstances the selection of any particular member out of the class is not essential to the testamentary act. It becomes an administrative act. During the debate I was impressed by the view that it might be possible to say that there was a fundamental difference in principle between the function of the alienus and the function of the administrator of the will. It does not matter that the two functions may be performed by different persons or by the same person according to the testator's directions. Is it possible to say that the function of the alienus is in essence testamentary while the function of the administrator is not? I have come to the view that it is not possible to draw such a distinction. Both do what the testator tells them to do, and I see no satisfactory line of demarcation between the power to select members of a designated class and the exercise of the infinite variety of discretionary powers which may alter the character of the enjoyment by a beneficiary of the testator's bounty. Unless a testator makes it clear that such discretionary powers are to be exercised only by a persona delecta, there is no doubt that the modern tendency is to permit all administrators, original, assumed or appointed by the Court, to exercise them.

Accordingly, the vital point in the present case is that the testator has designated a class. Any member of that class is entitled to benefit simply by reason of his membership. This testatrix has appointed no alienus to select the members of the class. Nor has she appointed anybody to administer her will. For the latter, she is entitled to rely on the law to fill the gap. Why should she not rely on the law to appoint the alienus? An alienus appointed by the law can follow but one course, select certain members of the class. Each member selected has already been named as a potential beneficiary. Had the testatrix wished to rely on the views of a friend who knew her mind or on the views of a person whose judgment she respected, she could have said so. By not saying anything she says that she has no personal predilections for any particular member of the class and that she feels the same to all. She might have appointed a persona delecta as alienus; she has not done so. I see no reason why her failure to do so should destroy her bequest.

That being the situation as it appears to me on principle, I have to consider whether I am precluded by authority from reaching that view. There is no decision in the House of Lords to the contrary effect. No doubt there are certain weighty dicta which are capable of being read to the contrary effect, but the Judges making them did not have this precise issue before them, and it does not follow that they would not have qualified their statements if it had been before them. I propose first to examine the House of Lords cases.

In Hill v. Burns the point in issue here was not only not raised but a not dissimilar aspect of the problem did emerge, viz., What happens if the alienus refuses to accept the trust? Lord Gifford said (at p. 89):

"However, it is unnecessary to consider that question in this case, because the trustees have accepted the trust reposed in them."

There is no hint that the availability of an alienus is essential to validity. Had the point been so clear and so elementary as the reclaimers try to make out, it would have been easy for Lord Gifford to say so. For him (at p. 86) the "great question" was "whether this bequest be sufficiently certain with respect to the purposes for which the property is disposed? Whether the character is described with sufficient certainty?"

In Crichton v. Grierson the testator gave careful instructions as to who were to carry out the selective powers. It was a clear case of delectus personarum. Accordingly the House was not facing the present problem. Lord Lyndhurst reviewed the authorities, which, as he said (at p. 342), "establish the position that the trustees may dispose of this property among certain classes of persons, or among particular objects, subject to the intention expressed by the donor, the creator of the trust."

In Blair v. Duncan the issue before the House was whether the words "charitable or public" sufficiently designated a class from which the alienus might make a selection. There was no necessity to discuss the position of the alienus, and, except for a sentence in Lord Davey's speech, the only noble Lord to deal with this aspect was Lord Robertson. Lord Robertson's dicta must be read in the light of his remarks at the top of page 5. Neither of the lines of approach there stated touches the present problem, and the references made to the alienus are merely incidental.

The case of Wordie's Trustees is of considerable importance. It raised the issue of whether the objects were sufficiently defined. The Lords held that they were, and that part of the judgment, turning as it did on the special terms of the settlement, is of no real assistance in the present case. The other issue raised, however, was, in the Lord Chancellor's words (at p. 127), that "no power of selection is given to the trustees of the will in order to enable them to determine among which objects of the class mentioned they are to distribute the residuary estate." The Lord Chancellor went on to say that this argument "depends largely upon this, that a contrast is drawn between the selection which the testator expressly reserved to himself and the gift in default of such selection which is to be carried out by his trustees where no power of selection is expressly conferred. But when it is remembered that the trustees are the people named by the testator as the people in whom he has full confidence for executing the trust, that in their hands is reposed the whole of the estate after it has been realised, and that they have to carry out the charitable intention which he expresses, it is not very difficult to infer that he intended that they should also possess the power of selection as to which of the objects included in the wide general description should enjoy the benefit of the gift."

It is obvious that Wordie's Trustees comes much closer to the present problem than any of the House of Lords cases which I have already discussed. At first sight it seems to be authority for the view that the alienus must be expressly or impliedly authorised to do the selecting, which would involve that delectus personæ was of the essence of the matter. It might be said also to give some support to the possibility—to which I have already adverted—of drawing a distinction between the positions of the administrator and of the alienus, and it might further be said that the Lords did not say that the administrator quaadministrator could act as alienus but that these particular administrators could act only because the testator had impliedly conferred the power of selection upon them. On the other hand it may be said that the material from which the House implied that the power was conferred was, apart from the circumstance of their appointment as trustees, of the most tenuous character. The real significance of the case is that, if a testator designates a class from which a selection falls to be made, it is a reasonable inference that he intends somebody to make that selection, and, if he has appointed trustees for other purposes, the implication that they were also meant to do the selecting is easy to draw. In other words the real emphasis is laid on the fact that the testator has designated the class of persons whom he intends to benefit. These considerations seem to have been in the Lord Chancellor's mind since, following on what I have already quoted, he continues:

"It is argued that the institutions that he desires to benefit through the instrumentality of his trustees are defined in terms so wide that the gift itself may be bad on that account. I agree that those terms are so wide as to render it impossible to read this gift as one intended to be for the benefit of each specific society that satisfies the given description, but from this it necessarily follows that it must be from some bodies answering that description that some other person may select, and there is no person in whom the power of selection can reside other than the trustees in whose hands the money rests."

It is to be observed that Lord Kinnear (at p. 128) said:

"But then it is said that in this particular will there is no power of selection given to the trustees; and I concede that that would be a very formidable objection if upon the true construction of the will it could be maintained."

He does not say that the difficulty is insurmountable.

It seems to me therefore that Wordie's Trustees says nothing to support the view that delectus personæ is an essential element and throws the emphasis on the truly testamentary act of designating a class of objects all of whom are potential beneficiaries. Moreover it undermines the view that the alienus must be expressly nominated. It paves the way to the view that, where a testator makes dispositions which necessitate the exercise of choice, there is no reason why those appointed to administer his estate, although not expressly nominated to choose, should not in fact exercise the choice.

The last case in the Lords pressed on us was Turnbull's Trustees, and in particular Lord Haldane's speech. So far as it affects the present issue it was obiter, but the passage particularly founded on (p. 91) seems to me to suggest, as the Lord Chancellor in Wordie's Trustees did, that the true testamentary act is the designation of the class, which means that the function of the alienus is subsidiary.

In my view, accordingly, there is nothing in the dicta of the House of Lords precluding the view which I have tentatively expressed on principle.

I pass now to the decisions in the Court of Session. The case of Dundas is of special interest. The testatrix, after leaving certain special legacies, provided:—

"Any money left after paying all expenses, I wish may be laid out on charities. I leave and bequeath to my nephew, John Dundas, the sum of £200 sterling, with power to see this will executed."

It was held that by the final words the power of selection was conferred on the nephew according to the true intent and meaning of the will. The solution was precisely that found in Wordie's Trustees. Lord Fullerton, who was the Lord Ordinary, was "not prepared to say that such a bequest would not have been good, even without the appointment of an executor, against her next of kin confirming as executor-at-law." In the Inner House Lord Mackenzie said (at p. 429):

"If no executor had been nominated, but a bequest in these terms had been left to ‘charities’ in the abstract; and one of the next of kin had confirmed as executor-dative, I should have felt the case to be attended with very considerable difficulty. Or even if there had been a simple nomination of the defender as executor, I should still have thought there was a good deal of difficulty."

Accordingly the present topic was touched on by two Judges, one appearing sympathetic to the present respondent while the other regards the question in its executry aspect as one of difficulty. It certainly cannot be said that the issue was not left open. Lord Gillies raised the issue of what might happen if the alienus declined and whether refusal would not have rendered the bequest to charities altogether void, and expressed the interesting and logical view that, if so, he was at a loss to see how it could be rendered effectual by his acceptance, "because that would be making the legacy depend, not on the will of the testatrix, but on the pleasure, or it might be the caprice, of an individual in accepting or refusing the office of executor." This is a weighty consideration, and it is difficult to see how something can be essential to the testamentary act if its effectiveness is to depend, not on what the testator has done, but on what a third party may or may not do.

The next case of importance is Robbie's Judicial Factor. The testatrix made her trustees the selectors, but before completing their task they died. A judicial factor was appointed, and the question which in the special case was answered in the negative was whether the discretionary powers committed to the trustees could be exercised by the factor. The argument submitted by the successful party was that there was manifest delectus personarum in the nomination of the alieni. It might have been sufficient for the Court to accept that argument, as express delectus personæ would exclude any substitution from any source other than the testator himself. It rather appears from Lord M'Laren's opinion that this was the ground of judgment, as he says (at p. 362):

"There may be cases where a testator has provided for the delegation of a power of selecting objects, and where from supervening circumstances the delegation cannot be carried out in the manner provided in the will. If it appears plainly that a testator did not mean to confine the selection of objects to persons nominated by himself, but only to take measures for ensuring that the selection of objects of his charity should be entrusted to competent persons, possessed of the necessary local knowledge, I do not say that it would not be within the powers of the Court to supply a vacancy in such a trust."

On that statement I make two comments. First, it follows that delectus personæ is the only impediment to some such action by the Court, and, second, there seems no reason why if such action is competent it should be limited to the case of partial failure. It should equally apply to Lord Gillies's case of refusal and to the present case of no nomination at all. Nevertheless in the earlier and more general part of his opinion Lord M'Laren says:

"The appointment of a trustee or hæres fiduciarius, with a power of selection, was essential to the existence of the bequest, because in the absence of such a grant of a power of selection the legacy would fail for uncertainty."

That statement, concurred in as it was by the other members of the Court, is the highwater mark of the reclaimers' argument. It is none the less obiter. So far as I can see Dundas v. Dundas was not cited.

In Allan's ExecutorDundas was not only cited but followed. The beneficiary in that case was not charity but foreign missions. The real controversy in the case was whether foreign missions constituted a sufficiently designated class. No doubt expressions were used which are capable of being read as meaning that the nomination of the alienus was essential to the validity of the bequest. But it appears that the argument presented was simply that there was no person nominated with a power to select. That is to say, the argument was the same as in Dundas and the result the same, as it was held that the testator intended the person appointed as executor to carry out the selection. Nevertheless this view of the will stretched the doctrine of implication to the limit, as the implication was based on nothing but the nomination as executor. I cannot help feeling that Dundas, Allan's Executor and Wordie's Trustees yield the result that the trustee or executor, nominated to administer a will, will in the absence of any indication to the contrary be allowed to act as selector within a designated class. It is to be observed that in Allan's Executor the Lord President says (at p. 816):

"It is quite true that it is not said that that executor is to do the choosing, but then there comes in the other canon, namely, that the Court will always help the execution of a charitable bequest."

As I have already indicated, I doubt whether this canon does any more than lay down that charity is a sufficiently designated class, and, but for Lord Dunedin's authority, I would have been doubtful of employing that canon to justify an inference of delectus personæ which otherwise could not be drawn. But the importance of his words is that they suggest that he could not have regarded delectus personæ as essential to the matter.

If then the law has come to this, that, rather than let a bequest to charity fail, it will give to an administrator under the will the power to select from the designated class, it is impossible to lay down that the alienus must be persona delecta or that failure on the testator's part to provide an alienus who is persona delecta is fatal to the bequest. If delectus personæis not essential and if an ordinary nomination of a trustee or executor is enough to entitle the nominee to act as the alienus, I see no reason why the failure of trustee or executor should be fatal. If in such circumstances the Court will appoint a new trustee, why should it not do so if the failure takes place through the refusal of the trustee to take up the trust, his predecease of the testator, or even by the omission of any appointment at all?

It must be remembered also that within the last hundred years there have been by statute great changes in the powers of trustees and in the nature of trusteeship. Accordingly I am unwilling to read into our case law implications which would tend to have it lag behind our statute law. Even Lord M'Laren lived in a world of trusts very different from our own.

In these circumstances I have come to the view that the cases of Shedden's Trustee v. Dykes and Woodard's Judicial Factor were rightly decided. The former of these, on the view that there was no delectus personæ in the original appointment, allowed an assumed trustee to act as selector. The latter case allowed the same thing to a judicial factor. I do not repeat the grounds on which the Courts proceeded. If the reclaimers' argument is sound that there must not only be an alienus but an alienus who is persona delecta, both these cases fall to be overruled. In my view, there is no foundation for the reclaimers' argument; the best they can point to is the obiter dictum of Lord M'Laren in Robbie's Judicial Factor.

I am glad to reach this result, as it seems to me to show that our law has developed and has done so on sane and rational lines. If the reclaimers are right, we have learnt nothing for a century and a half. Furthermore, we shall not require to overrule any previous decision. Lastly, had I thought that there was substance in the reclaimers' argument, I should have found it very difficult to know where to draw the line. I can understand the appeal of the argument that delectus personæ is essential in the sense of a personal choice made on intelligible and reasonable grounds. But once one cuts adrift from that idea, I can find no satisfactory anchorage. Are we to stop at the assumed trustee? If so, is it to be the trustee assumed in virtue of a provision dealing with assumption or some recognition in the will of the prospect of assumption? On the other hand, why then should we stop at the trustee assumed by statute? We were pressed with the metaphor of the facilis descensus. Why should one be less happy in Avernus than clinging unhappily to the edges of the pit? But why not change the metaphor and let us rejoice that another Everest has been conquered?

LORD MACKAY .—There is no room for doubting that, when a whole case is sent by any Division to the arbitrament of a Seven Judge Court, the effect as well as the intention is to throw open all expressions of opinion in cases by lesser or less numerous tribunals to free discussion and to the freest of comments, as well as to allow even their decisions to be effectively overruled if that be necessary. Indeed the consulted Judges, along with those who have already heard the case, are possessed of the same status and power to reconsider every decision as the learned and noble gentlemen who advise the House of Lords enjoy in similar case. I am emboldened in that aspect to state freely and without undue reticence my otherwise clear views of the law of Scotland bearing on the matter of the holograph will of Mrs Annie Batchan or Angus, without being hampered by any decision of one Division of our Inner House, if that decision should seem on careful analysis to have carried a doctrine beyond its historical origin, and especially if it go beyond the still accepted foundation of the whole scheme of law which is under review before us.

I feel, however, the necessity to point out first of all that, since the whole case is before us for decision, so the point of the validity of this short clause is entirely before us and open to us, and that, although the desire to have a clearing up may have caused our being conjoined with the First Division, we (or at least I) are called upon to distinguish or to set aside decisions only if and so far as my logic finds it essential to the justice of this case so to do.

Accordingly I look firstly to the actual de quo disputandum.Mrs Angus had two witnesses in to witness her signing a document, here reproduced in Folio 19 from the Records of Scotland. As she does so twice, dating the first signature "30th day of March 1937," she had obviously and plainly done the first signature at the end of a somewhat blotted series of direct gifts, every one consisting in direct bequests, thus:

"Do bequeath"

:

"to my sister,"

and so on down to the:

"To Agnes and Mary Campbell residing at Orchard Cottage Ruchill—10 pounds each."

Thereafter occurs a word "deceased," unscored, which nobody construed; but there follows thereon this phrase "This is signed by my own hand," and then palpably came the first signature and date. At some time later she inserted the following eight words:

"All money after paying, please give to charties"

—which has been read "charities."

So far so good, and I do not question that the later insertion is sufficiently authenticated by the already placed signature. Such may be the force of the Scottish law of authentication by holograph will. But it is due to point out that from the above short statement it is plain that, not only did she never at either juncture intend to appoint any trustee or trustees with powers of any sort, but that it is also plain she does not attempt to appoint, even in the vaguest of forms, an "executor," either in the formal technical terms or sense or (even more important) "an executor (A. B. by his name) to carry out the provisions of this my will." Compare and contrast that phrase which was found in the decision of Dundas v. Dundas .

Has then the law of Scotland by this date gone so far as to predicate the validity of a direct gift, in such words, not being to a group of charities to be taken out of a major "class" known as "charitable" and to be selected by some one, or even out of a group the choice to be by an executor-dative (here I will meantime assume that she was aware of the rule that the Sheriff may appoint such an executive officer upon her estate), but to the whole of "charities," without any "direction" at all, of such a nature as to enable one to follow out her known idiosyncrasies, or her predilections, or one competent to give any guidance at all, except the two broad words "To charities"?

To me, that, from the opening of counsel in this Seven Judge hearing, has been the whole and the true question. It may truly be inquired whether any strict and stern lines need necessarily be laid down by the Court on other, actual or hypothetical, instances, where much more is or may be expressed.

Now, my straight and conclusive answer to that one question is, No. Nothing, in my judgment, in the law of Scotland, however favourably inclined it be towards vague charitable or benevolent designs, has allowed us to help out such a jejune and uncertain gift as this. In a case decided by us in the Second Division in the week previous to this present hearing—Rintoul's Trustees—I ventured to estimate roughly the proper charities in Glasgow at (say) 200, and in the whole of Scotland at ten times as many, and if the word "elsewhere" is expressed or assumed—giving, as one Judge said, "a world-wide area of choice"—at a large part of a million. Similarly here (no power to select being found) I cannot find it within the equitable or even the nobile officiumpowers of the Court of Session to spread the bequest over half a million, or at its own hand to select (say) half a dozen.

Once more—it may be perhaps not wholly on the lines argued to us, but is completely logical—I desire to point out emphatically that now to interpose an official of this Court (to wit, a judicial factor to be chosen by us) is not to consider that he by such prospective appointment shall derive power to select from the testatrix, nor in any way to "link up" with her, but on the contrary it is that the Court delegates its (supposed) power to do this selecting from itself to its own officer or servant.

These considerations carry me so very far towards an ultimate solution that I return now to the authorities canvassed before us with some reluctance, as one forced by the argument to decide some (perhaps) subtle niceties as to the lengths supposed to be already achieved by a progressive series of authorities or precedents. But I respond to the call, in order to aid the Full Court, to my best ability.

Both speeches sought to start out from an (apparently) common basis, that the Scots law takes origin with the House of Lords decision in Crichton v. Grierson (year 1828). Rapidly, however, on hearing Mr Philip, it became obvious enough that he desired that we should interpret Lord Lyndhurst differently from the presentation of that noble Lord by Mr Thomson. I am short on this. For I do not myself regard the outset of the law which we are applying as being in the year 1828, but as coming down from at least 1729 in the case of Murray v. Fleming, cited by the Chancellor. Further, I see no particular utility in treating the exposition for the case of the will of James Crichton of Dumfries as closing the horizon for all time, and as being merely a subject of varying expositions from later time to later time. In saying so, I must be regarded as in no way doubting that exposition which, on the contrary, I do follow implicitly.

But, after discussion of twenty or more later decisions, of which the latest brought under direct discussion was a case sent up by myself in the year 1929—a century later—namely Reid's Trustees v. Cattanach's Trustees, I am ready to assert that the whole principle of the law we are in search of is to be found fully laid forth in only three speeches, two of them in the House of Lords, and all of this century. I therefore put them first and discuss earlier decisions in their light. The speeches are (1) that of Lord Robertson in Blair v. Duncan, at page 5, (2) that of Lord Haldane in Turnbull's Trustees, at pages 91 and 92, (3) that of a Lord Ordinary, who happened to be myself, in Reid's Trustees, as quoted to us from pages 729 and 730 of that report.

Before citing, let me say this: Lord Robertson had been the president of our Court and was afterwards promoted to a Lord of Appeal. He was a remarkably clear legal mind, and of an exceptional precision of words. Lord Haldane was one of our Scottish-born lawyers, pre-eminent at the English Chancery Bar before his elevation, carrying great weight in matters of wills and succession. I apologise for placing myself in their company, but I defend that apparent presumption by pointing out: (a) that this is the last clearly formulated statement of the law read to us, (b) that the case went to the Inner House and, while the actual substance of my present passage went without challenge, there was no hint even in the submitted argument that the basis of my law was wrong, (c) that the whole passage was read and relied upon by Mr Thomson, and (d) that Mr Philip, having his due chance, did not criticise a single word or sentence in it. Add, that it was so passed after the whole of the now challenged decisions of Shedden and Woodard and others had been in the books and were open to discussion. Then it seems to me that my earlier decision of twenty years ago, to which I have listened with the utmost good will to reconsider and restate it if it should now have been shown to be wrong, still expresses and continues to express my outlook on the law, and accordingly it must remain the unshaken view now to be by me tendered as a consulted Judge of the Second Division.

I accordingly state the law as now in three-fold fashion delivered by these three decisions thus:—

Lord Robertson said:

"When those opinions and the authorities cited in them are examined [referring to Hill v. Burns ] it will be found that they give no support to the proposition that a bequest is valid which consists merely of a direction that a certain sum of money shall go to any purpose that a nominated trustee may think proper. The case then before the learned Judges was not such an unlimited power, but a direction to trustees to select as the object of the legacy such of the benevolent and charitable institutions in Glasgow as they thought fit. And in speaking of alienum arbitrium they were defending the bequest against the objection that the intervention of alienum arbitrium to any extent made the legacy void. This is made perfectly plain by the reference by the Lord President to the cases of Brown and of Buchanan, in both of which the alienum arbitrium was invoked merely to select from among the testator's own relations. There is, so far as I know, no authority for the broader proposition that according to Scottish law a good bequest is made by A when he directs B to make a will for him … and it is contrary to the fundamental idea of testamentary disposition. What has been established as regards the intervention of a trustee is thus stated by Lyndhurst, L.C., in Crichton v. Grierson, and the passage touches the very core of the present case."

He then cites Crichton and proceeds:

"This is the rule which has to be applied in the present case, and the question is, Has the testatrix done what Lord Lyndhurst describes—has she selected a particular class or particular classes of objects among which her trustee is to select?"

I need not cite further what he says on the next page (page 6). But it strongly reinforces the same absolute necessity.

Lord Haldane said:

"He cannot leave it to another person to make such a disposition for him unless he has passed the beneficial interest to that person to dispose of as his own. He may, indeed, provide that a special class of persons, or of institutions invested by law with the capacity of persons to hold property, are to take in such shares as a third person may determine, but that is only because he has disposed of the beneficial interest in favour of that class as his beneficiaries. There is, however, an apparent exception to the principle. The testator may indicate his intention that his estate is to go for charitable purposes. … Trusts for charities have been regarded with favour as constituting a particular class recognised as sufficiently definite to enable a testator to leave his property on such a trust, and to empower a third person to determine the shares in which those falling within the class are to participate in his bounty."

One can have no doubt that in his Lordship's view the phrase "and to empower," and so on, is linked up to what goes before so as to form a real part and condition of the favourable allowance itself. Equally, it is an essential factor in the statement of law that there should be a "leaving … on such a trust." So and so alone it consists with Lord Robertson and with what follows:—

My own humble opinion was, and it still is, as follows:—

"Turning then to the old and well-worn line of authorities, it appears to me that ever since Morice v. The Bishop of Durham the guiding rule is this, that a truster may not leave the making up of his own will to other persons; but, secondly, that a limited power of selection of the objects may be left as executive powers to his executors, provided the main purpose is sufficiently definitely indicated. Now, the whole of the emerging law seems to me to be largely nothing but an application of these principles. The principles are not confined to charitable gifts, and the distinction of good and bad may occur within the general category of ‘charitable.’ The doctrine is not that, where ‘charitable’ is mentioned, the gift must be found good. It is merely that charities get a more liberal or favourable construction. … But, where there is a large discretion reposed in executors, in that class the onus will be on those who assert that the power of selection is merely executive, that it does not go to committing the choice of object to others, and that the testator's real desires are sufficiently plain for execution."

I desire, in repeating all that, merely to state as a slight supplement that I regarded, and do regard, the phrases "executive powers of selection" and "a large discretion reposed in his executors" as expressing my constant view that in any moderate or large class, be it of "relatives or relations," or be it of "charitable objects or purposes," the "coupling" of the description of any large class "with" the conferment of power, as it is constantly expressed in case after case, is an essential for the form of testamentary activity to pass the muster of the law. I adject the pregnant suggestion that the very possibility of the present long debate turns in part on a too absolute severance of the question of "What is a good class?" from the other question of how the selection in it must be taken. I do not for myself so rigidly separate, nay I think the constant words "coupled with … a power" show that the double presence is required even to make any class, e.g.,relatives, into a narrow enough area for selection.

For my part, I can still find no room for doubt that such was the full intention of Lord Robertson and Lord Haldane, and in short that it is the law of Scotland. These words, then, govern and decide this case. What then of the cases and authorities? What of the Lord Ordinary's reasoning, which (incidentally) should not be altogether neglected?

First of all, I shall treat the cited precedents before the present century, i.e., before Blair v. Duncan . I have reconsidered them with full responsibility. They are not so many. I find no real difficulty with any at all, except perhaps the merest obiter or, rather, reservation of his opinion should necessity occur, as thrown out by Lord Fullerton, in which slight indication the Lord Ordinary placed more than due reliance. I mention it anon. But Mr Philip's attempt to translate Lord Lyndhurst in 1828 otherwise than in the full sense of the cited passages completely fails. True enough, the Chancellor gave the greater attention in exposition to the "relative" groups, but he arrives at the "charitable" passage thus:—

"In none of these cases did the objection prevail"

—now, that objection was uncertainty—"and it did not prevail, because a particular individual was pointed as the person who was to select among the class, and to point out those among the relations who were to take." (He does not say, "But the whole of the class might take, if no selector or selection"; nay, he excludes that by his very words.) Then we come to a passage which cannot be construed away as Mr Philip attempted:—

"The same objection in point of principle will apply to those dispositions which were made in favour of charitable institutions, and in respect of those the same answer has been given."

Indeed, I go so far as to say that, after that, the room for arguing Mrs Angus's deed as good is infinitesimal.

Dundas v. Dundas was decided only eight years after Crichton. The House of Lords case is noticeably referred to by the Lord Ordinary (Fullerton) as ruling. Equally the Division must have had it in view as their leading light. In addition the Lord President in the most important part of his opinion, that is, the later addition upon page 430, refers to an instance of Lerwick, of which he says:

"A legacy became void in circumstances analogous to those now alluded to by Lord Gillies. Where the testator has made it a condition of a legacy that it is to be bestowed at the discretion of a particular individual, and that individual refuses to act, the legacy falls, because the will of the testator cannot be fulfilled."

It is therefore clear what, in the present situation, Lord President Hope would have said. Lord Mackenzie I regard as the leading Inner House judgment here. But Lord Balgray would be just as good. No doubt Lord Mackenzie only expresses a sense of "considerable difficulty." But he was wise so to do, since it was necessarily an obiter dictum. But who can now doubt, from what he did say—that "If no executor had been nominated, but a bequest had been left to charities in the abstract: and one of the next of kin had been confirmed as executor-dative, I should have felt," &c.—that in such an event he regarded the attempted testament as hopeless.

At this point I return for a moment to the Lord Ordinary here (Lord Mackintosh), since I note that (the only person before us being an executrix-dative qua legatee for £10) his Lordship says:

"An executor-dative is not, like an executor-nominate or a judicial factor appointed by the Court on a trust estate"

(nota bene, on a trust estate, which is a factor notpresent here), "a trustee within the (1921) Act, and cannot be required to act with the discretionary powers proper to a trustee." I agree then both with Lord Mackintosh and with Lord Mackenzie's plain and strong hint. And I am unable to see that any pressure brought to bear on an intermediate "dative" officer appointed by the Sheriff, that he should resign his job in order to allow the Court of Session to make such choices as are necessary, in any way whatever serves or can be said to supply what is necessary as to a power linking up with or flowing from the testator, through such a course or channel of permutations. The new or secondary appointee might be by such appointment a "trustee" for the sole purposes of the various Trustee Acts, but he cannot derive either by direct "link" from the truster, or by derivative substitution to a mere dative officer, any effective power to render good a bequest which on its bare statement, and upon these cited authorities, is an infringement of the limits. I promised to refer to Lord Fullerton's obiter. (By the way Lord M'Laren's work discusses this authority at the following pages, 338, 346, 590, 766, 854, 919, 1027 and 1105.) I do not regard even the obiter dictum as more than a reservation, which is substantially disapproved in the Court above. But in any case Lord Fullerton must, if the further case ever came up, have considered more fully than he does what the Lord Chancellor's passage involved.

The opinion of Lord M'Laren, both in his book Wills and Succession, vol. i, pp. 338, &c., and in the case of Robbie's Factor, at p. 361, of which so much was made, had to suffer serious and would-be destructive attack by Mr Philip. I think, plainly without vulnerative effect. Enough for me, looking on the whole question as I do, to say that no one could doubt what Lord M'Laren would say to-day if presented with the print of the holograph will which lies before us. It would be, according to him, a plain defiance of the law that you cannot leave your will-making to others. Therefore, much less can you describe a suggestion of some of 200 or 2000 objects, without a selector, as a sound exercise of testamentary power.

I pass, still shortly if I can, for others will doubtless deal with them, to the cases which occur in the interval between Blair v. Duncan and Reid's Trustees. Here I put aside shortly, as affording us no great light, all the following: Allan's Executor, but the passage cited by the Lord Ordinary is wholly and entirely in line with my three citations—"unless the testator has given a power to a trustee to select" (italics are mine); nay further, the appointment of a particular power, particularly to a specially competent individual, had to be, as it was, prayed in aid to sustain the conferment (the Rev. W. Watson); Macintyre v. Grimond's Trustees; Low's Executors, which is just a further simple sample of the Crichton doctrine; Campbell's Trustees v. Campbell (another application by the House of this very doctrine, coming immediately after Lord Haldane's pronouncement); M'Credie's Trustees; and M'Phee's Trustees. But the anxious debate does desiderata a few words on Shedden's Trustee, on Wordie's Trustees, and on Woodard. I do rather incidentally find some sustenance, however, from Lord Dunedin's opinion in Laurie v. Brown, where the then Lord President adopts as a whole Lord Robertson's reading of the law, and applies it. I therefore add that great name to my list. It was, one supposes, upon the strength of the former three instances that the greatest reliance was placed in suggesting a gradual "liberalising" by the course of decision of our law of "charitable" testaments. The whittling process is pled to go so far as to ascribe nothing at all to the testator other than by way of some "indication," as it was put, of an intention to invoke vaguely the help of the general law of administration for a testator's "authority" or "power" to select. The downward progress, it was contended, acted by whittling this mandate down at the end of the day to a mere assumption (and so it of necessity must be here) that the will-maker knew all the law and that it provides for "some one" to settle with the Revenue, to pay bills, and to provide against "vitious intromission" (see Currie's Confirmation, p. 184); and that the will-maker may therefore be supposed, without words of executry and without anything, to repose the same belief in the discretion of any such administration, as earlier will-makers did to their selected and named persons, and so sub tacito to have expressed his mandate to the nominees of another person or authority. In my opinion, so to suppose would be to allow "whittling down" to run to riot. It would assume what Mrs Angus probably knew nothing about. And in any event it would be the chemical solvent of the whole doctrine itself.

Does one require to overrule any of the three discussed precedents? I approach this, in my easy line, with reluctance. But, to take first Shedden, we find there a definite appointment of two named persons as "trustees" and"executors." To these persons, not again named but under the general designation "to my trustees," she entrusted an absolute and uncontrolled discretion to decide. She did not give, as is sometimes usual, any power to assume, and prior to the Trust Act of 1921, or earlier Act, the death or non-acceptance of both would certainly on the authority have caused a fatal gap. That Act, or some Act, was thought to imply an intention by such truster that her trust might be kept alive by force of the statute. By a (to me) far-fetched application, the ascribed or implied intention was held to confer the "absolute and uncontrolled discretion" on the assumee, even if he should remain in sole office. But it is to be noted that the new party is still one possibly to be described as "my trustee," and the authority, if sound at all, will not go to validate (a) a case where no trust is set up, (b) a case where, though a trust, no discretion is specially conveyed, or (c) any proper power in this Court to substitute the omission of both parts necessary to the doctrine by an officer of its own and a conferment to select instances out of many emanating from itself alone. While pointing this out, and while thinking that the overruling of Shedden is totally unnecessary to this my advice, I am free in this Court to say that I find the extension authorised by the First Division to be lacking in logical force; and, if I am asked to overrule it here, I would do so in order to keep the doctrine pure. Lord Johnston's dissent or reservation of opinion is exactly on the lines of my own thinking. I notice also that Lord Mackenzie appears to think that lower Court decisions in Blairare on all fours, and uses one English decision, Crawford v. Forshaw, as in point. I do not think so.

Take, next, Wordie's Trustees. Of Wordie's Trustees I have to say that it is difficult to understand why it was regarded as any obstacle at all. There was merely a somewhat complicated class among which, failing a special "writing" which testator Wordie at one time intended to provide, trustees specially named and specially empowered were to divide at once the fund. There was, no doubt, room for much sound argument as to the vagueness of "protestant" and other words in the description. But there was a full limit set up, and "the trustees" were directed to convert and to "pay and divide" the whole among that doubtful class. From the direction so to do, and that by an immediate and final division, and not by any long postponed administration, the named persons derived a direct mandate; and it was easy enough to infer that the discretion to discover the class rested with the new trustees. In other words "pay and divide" in an immediate gift were held good enough to represent "select."

I come to deal, thirdly, with Woodard. There the nominees each declined office, but there was in the holograph will an express link with the testator by an express conference upon charities "as my trustees may think best." At whose instance a factor (R. C. Millar, C.A.) was appointed we do not know. He was obviously selected by some legatee or beneficiary. He had no element of "link" with the testator nor could be possibly claim other than remotely inferred power from him. Now, I should not be necessarily prepared to overrule the decision, if it be supported merely as a decision. I fully appreciate the balance or complexus of views as containing just possible material for a remote conclusion. Thus (a) Lord Ormidale at p. 539 refers to the constantly repeated mention in the deed of "my trustees," without any renewed reference to the personal element of confidence; (b) he and others refer to the "probability" in that case of the choice to be made as one very "remote"; it is therefore inferred or inferable that the formal truster could not have contemplated the original two as surviving, even at the juncture of making the first choice, still less of a deferred and future choice; again (c)the Lord Justice-Clerk put his real ratio decidendi thus:

"We should hold that there was no delectus personæby the testator in this case"

(italics mine). As then a special case (as I think both these Judges treated it) I express no more than a faint doubt if their reasoning was sufficiently convincing. But the course of the above reasoning requires itself no correction. Therefore as a particular decision for a long-distance trust, if I may so describe it, it may possibly stand up together with the true doctrine. And I find full corroboration of this very special view in Lord Anderson at p. 543, which passage comes nearer to the ruling cases than others. But what I am impelled to say is that certain expressions used, particularly some chosen by the Lord Justice-Clerk, suggest an inversion of the onus demonstrandi, and could not have my approval. Thus:

"I can find in this will nothing to suggest, far less to demonstrate, that the testator intended that his nominated trustees should be indispensable to carrying out his charitable purposes."

The words "demonstrate" and "indispensable" are to my thinking incapable of acceptance. So again, "Considerations of convenience and economy alike dictate that, if possible, the judicial factor, who is already in the saddle, should exercise the powers conferred, rather than that resort should be had to the cumbrous procedure of his resignation." It humbly appears to me that the words "if possible" followed immediately by the motion to give the power are a complete instance of the petitio principii.

If then I should pass Woodard, it would be solely on those special readings of the judgment. So used, it is very far indeed from predicating, or at any rate establishing for the future, that in the absence of all trustship and in the absence of all conferment of power the Court of Session has any function at all to disappoint heirs of all sorts by setting itself up to create both the continuing trust and the requisite power. In any event, it is for me again to point out that we have here in our actual case, if we have anything at all, a case where the choice and selection and payment must necessarily be made, once and for all, and one which requires no continuous discretion over a long series of years, such as Lord Ormidale in Woodard sought to bring into play. I should also have mentioned that Woodardcould not overrule Robbie, and that accordingly Lord Ormidale, quite correctly, only purported to "distinguish" his case from Robbie. He leaves Robbie standing, and, as between the two standing decisions, it is Robbie that is far nearer to the present. Finally, however, if it be requisite for me to reconsider Woodard I would be for saying it is an undue extension of, or rather infringement of, the true doctrine of Scots law, and should be overruled.

I have already then found two easy resting places for my judgment and vote in the matter. I cannot possibly hold that any extension of the law has to this day gone so far as to sanction the present eight word gift as good testing. But in these cases one feels a strong pull to indicate, as shortly as may be, the true nature of that course of thought to which Mr Philip asks us to give effect. I shall do so under three heads.

Firstly, his able and exhaustive analysis of the existing law sought to place the various decisions into six "categories." They in the end became seven, and I have all the steps noted. Each step of these graded "categories" took, he said, the law one step further away from the origin of the doctrine in Crichton, and each step followed from that before by aid of a proposition of Mr Philip's, either that "no valid distinction can be drawn" between step A and step B—or else that "step B is just the same thing as to say what step A has said." So a path is laid which may not improperly be said to be strewn with primroses. It is quite useless to restate the seven steps. All I need say is that my logic holds that, if not of all of them as so presented, at least at three special steps there is an inherent fallacy and at each of these three steps the claim lacks logic. And in particular the step which leads to the new appointment of a factor by the Court, armed with the express "power" of selection, is a step which, in my opinion, does not flow from the doctrine, but spells the end and extinction of the doctrine.

Another strong effort was made to cut the painter from attachment to Lord Lyndhurst, and to convince us that the real start of the doctrine of charities in Scotland is from another House of Lords case in the year 1858—Magistrates of Dundee v. Morris .To this contention (which palpably was a new discovery since the Division hearing, and to which Mr Thomson was afforded no opportunity of reply) I listened with attention, but with some astonishment. In all the long sequence cited including the cases of Blair v. Duncan, Turnbull's Trustees and Reid's Trustees, to which I have pinned my faith, there is not one in which Morris is even mentioned. The only supposed exception is Turnbull's Trustees, and there, while the case is noted in the notes of citations, it does not attain mention by name by any Judge. But we were asked to hold a single sentence of Lord Haldane (at p. 92) to have proper reference to it when he says:

"The Courts will disregard a merely subordinate deficiency in particular expression of intention to dispose of the entire beneficial interest to a class, and will even themselves"

make a scheme. The reference is only by Lord Haldane, out of five learned Lords. And the attempt to qualify the passages I have cited by virtue of the reference most obviously fails. The important words in the sentence are "a merely subordinate deficiency." In my belief the deficiency here is not "subordinate" but paramount. While the ratio of Morris (where the Court of Session was reversed) is not perhaps very easy to decipher, it is completely certain that it was not regarded as a case of selection from any, narrow or wide, group or class, but was a truster's attempt to institute a single and particular charity, with a definite management as an Institution. Clearly that management was to exist for generations, and to that management, of course, the picking of the boys to occupy the home from time to time must necessarily be entrusted. The Court was certainly very favourable to this single and individual effort, not to give money to a single already existing institute, but to add one more to their number. But the Court certainly do not profess to proceed upon any doctrine whatever which requires selection among many, or the conferment of any discretional powers. For me that clear distinction is enough.

In the last place, it is necessary to refer to a proposition which was gradually worked out in this shape, as if focussing the case made for the executrix-dative in Mr Philip's hands. It was formulated thus:

"Must it not be presumed (or assumed) that any testator is willing (or intends) that the necessary factor of selection flowing from a quite general gift to all charities will be adequately undertaken, and be well performed to her satisfaction, by any administrator of whatever character into whose hands her estate chances to come for distribution?"

It is my final word that such is really the conclusion to which those who exaggerate the content of Shedden and Woodard must come. It is a proposition which I cannot and do not support. Moreover, I think it is one which, if here accepted, marks with a stone the grave of the whole doctrine which has been so anxiously developed over a century of decision. In short, the doctrine ceases to be; and in favour of a right, residing in every testator, just to say "charities," and the thing is done.

For these reasons and by at least three separate steps of reasoning, my vote on this interesting case is that the bequest fails from uncertainty and that the intestate claimants fall to be ranked and preferred.

I hope to have made clear that my mind is indisposed, upon two competing categorisings of all precedents, to anticipate and decide beforehand all possible future cases; on the other hand, there is everything to be said for isolating a very few of the reasons assigned by any one or more Judges which now appear to us to conflict with the true and of new established principle, and to eliminate these obiter errors from future trend of decision.

As an example only, I could take the clear effort made, here and there, by such suggestion as that the onus (in the absence of the plainer indicia) lies upon those who claim that no selective power flows from the testator; or again in those passages which seem to abandon the plain principle that intention, if inferred, must be found in words and in words of "clear implication" and desert it for the vague conception of "indications," the search for which is laid upon the wrong shoulders. In the whole result, I concur as regards the challenged precedents in a motion that Shedden may stand, but that Woodard shall be overruled.

LORD JAMIESON .—The controversy in this case is whether a bequest to "charities," without the nomination of any person to select the particular charities to be benefited, is a valid testamentary disposition which can receive operative effect at the hands of an executrix-dative or a judicial factor appointed by the Court to administer the deceased's estate. The testatrix left a holograph will bequeathing a number of pecuniary and specific legacies. She made no appointment of an executor. The will finished with the words "All money after paying, please give to charities."

It is a cardinal rule that a person cannot leave it to another to make his will for him. A person may however in the disposition of his property select a particular class of individuals or objects and give to another the power, after his death, of selecting from among that class the particular individuals or objects to be the recipients of his bounty. The competency of so doing was authoritatively settled in the House of Lords in the cases of Hill v. Burns and Crichton v. Grierson . It has been repeatedly reiterated, and in particular by Lord Robertson in Blair v. Duncan and by Lord Shaw in Wordie's Trustees, and both these learned Judges emphasised the necessity of the two requisites enunciated by Lord Lyndhurst in Crichton v. Grierson, viz., the appointment of a particular class and the leaving to trustees or a third party power to select within that class. The power need not be express. It may be impliedly given to executors or trustees nominated to administer the testator's estate—Dundas v. Dundas, followed and approved in Allan's Executor and Wordie's Trustees.

The Courts have always shown a benignant attitude towards charitable bequests, and for that reason gifts to charities in general or for charitable purposes have been held valid, if coupled with a power, express or implied, to a third party to select the particular objects to be benefited thereunder. To say that a bequest in such wide terms is to receive effect, when unaccompanied by such a power, appears to me to be contrary to principle and to the weight of authority. It was maintained, however, that the validity of such a bequest was to be derived from the cases of Shedden's Trustee v. Dykes and Woodard's Judicial Factor and certain dicta in earlier cases.

In Dundas v. Dundas, Lord Fullerton, the Lord Ordinary, said that he would not have been prepared to say that a bequest to charities in general, even without the appointment of an executor, would not have been good, and Lord Mackenzie said that such a case would have given him considerable difficulty. But these dicta were purely obiter and cannot be regarded as expressions of decided opinion on the point now before the Court. In Robbie's Judicial Factor the Court held, on a construction of the will, that the power of selection was personal to nominated executors, and that, they having died, the power could not be exercised by a judicial factor appointed by the Court. In the course of his opinion Lord M'Laren, dealing with the possibility of supervening circumstances preventing the delegation of a power of selection being carried out as provided for in the will, said (at p. 362):

"If it appears plainly that a testator did not mean to confine the selection of objects to persons nominated by himself, but only to take measures for ensuring that the selection of objects of his charity should be entrusted to competent persons, possessed of the necessary local knowledge, I do not say that it would not be within the powers of the Court to supply a vacancy in such a trust. But, in such cases, I think that our jurisdiction would be best exercised by appointing new trustees, and, if need be, approving of a scheme."

It appears to me, from the reference to persons possessed of the necessary local knowledge, that his Lordship did not have in contemplation bequests to charitable purposes generally, but to charities of a particular nature and in a particular locality, or to cases where a testator has defined the object of his bounty, but the appointment of trustees and the approval of a scheme of administration has become necessary to give effect to his wishes. I say that because in the immediately preceding passage he said:

"If I am right in defining this bequest as a bequest to charitable and religious purposes to be selected by the trust-disposes, it follows that the legacy fails by their death. The appointment of a trustee or hæres fiduciarius, with a power of selection, was essential to the existence of the bequest, because in the absence of such a grant of a power of selection the legacy would fail for uncertainty. The power might have been given to persons in succession, or the first acceptor or body of accepting trustees might have been empowered to name successors in the trust. In such a case the elected or assumed trustees derive their authority to select the objects of the charity from the testator, and in principle their position is not distinguishable from that of the original trustees. But if we empower our factor to distribute the residue amongst charities, his authority comes from the Court, because it is quite certain that under this will no power of selecting objects of charity is given to a nominee of the Court of Session, or, indeed, to anyone excepting the persons nominated by the testatrix herself."

Later on, after reviewing some of the authorities, he said:

"It appears to me that these decisions are distinctly adverse to the view that a power of selecting charitable and religious purposes to which an executry estate is to be applied can be exercised by a nominee of the Court."

I have quoted somewhat fully from Lord M'Laren's opinion, as it respectfully appears to me correctly to state the law as that is to be derived from the earlier cases. The first passage to which I have referred formed the basis of Lord Low's judgment in the Outer House case of Grieve's Trustees v. Wilson, where he held that powers conferred on nominated trustees, who had predeceased the testatrix, might be exercised by trustees appointed by the Court. There, however, with one exception, the charities to be benefited were named, the power conferred was merely one of allocation, and the case approximated to one in which, there being no machinery for carrying out a particular charitable intention of a testator, the Court will settle a scheme.

In Shedden's Trustee v. Dykes it was held that an assumed trustee was entitled to exercise the power of selection and allocation conferred on nominated trustees. Considerable doubt was expressed by Lord Johnston, but he concurred in the judgment on a construction of the will, treating the case as a special one. We were asked to hold that the case was wrongly decided, but I am not prepared to do so. I think the judgment may be supported on the ground stated by Lord M'Laren in Robbie's Judicial Factorthat an assumed trustee derives authority from the testator, and I think it immaterial that the will contains no express power of assumption. A testator must, I think, be assumed to be aware of the statutory power to assume new trustees, and that, especially where the trust purposes cannot be fully carried out until the lapse of a considerable period, it may become necessary to exercise such a power. I am unable, however, to agree with the Lord President's view that the residue clause contained nothing approaching delectus personæ. In appointing trustees a testator does so because of the confidence he places in them, a point that was stressed in Wordie's Trustees. It is not necessarily confidence in individuals personally, as where an appointment is made of trustees ex officio, relying on the competency of the holders of the office, and perhaps on their local knowledge, to execute the trust. A bequest to charities in the abstract is only capable of being given effect to at the hands of one or more persons empowered, expressly or by implication, to select the particular objects to be benefited. It is from the power of selection so given that "charities" have come to be regarded as a sufficiently designated class and such a bequest derives its validity. In choosing to benefit charities rather than his heirs, a testator exercises a delectus in the choice of persons to whom he leaves the power of selection, although that power may only impliedly be given to his trustees. In exercising the power, the persons to whom it is committed have, in most cases, the advantage of some knowledge of the testator to guide them. I do not suggest that his wishes have actually been communicated to them. But their knowledge of the testator and his interests during his life will to some extent influence them in carrying out what they regard would have been his wishes, both as to the nature and locality of the objects they select. No such advantage is possessed by a nominee of the Court, and where, as in the present case, a judicial factor would be left to "survey mankind from China to Peru" with a world-wide choice of charities, the bequest must, in my view, be regarded as void from uncertainty. In Shedden's Trustee the bequest was limited to charities in a particular locality, but the difference is only one of degree. It appears to me that in every case delectus personæ to some extent, although not in the strictest sense, enters into the matter, and that, where a power of selection is not made personal to nominated trustees, assumed trustees may exercise it because the testator must be taken as assuming that, if necessity arises, the trustees whom he has nominated will assume persons on whom reliance may be placed to carry out his wishes.

There is no link between a testator and trustees or a judicial factor appointed by the Court to administer his estate. For that reason I think the distinction drawn in Woodard's Judicial Factor between that case and Robbie's Judicial Factor did not warrant the decision. Nor do I find in the fact that a judicial factor is a "trustee," empowered to administer an estate, with the powers conferred by the Trusts Act, a sufficient ground for the decision. I think the decision contrary to authority and that it should be disapproved.

In the result, in my opinion, where a power of selection among charities is not expressly or by implication conferred on nominated trustees personally, it may be exercised by assumed trustees, but not by trustees or a judicial factor appointed by the Court. It follows that, in my view, the bequest in the present case is void from uncertainty.

LORD PRESIDENT (Cooper).—Agreeing with the majority of the consulted Judges I am of opinion that a person who simply directs by his will that his estate is to go to "charities" or to "charity," and says no more, has not effectually exercised the power to test.

To affirm for the first time that such a will is valid would involve making a holocaust of a century of judicial pronouncements of high authority, and of the statements of the law contained in every modern textbook which has dealt with the subject. To the citations given by Lord Jamieson I would add a reference to Bannerman's Trustees, per Lord Johnston at p. 406, and Chichester Diocesan Fund, per Lord Macmillan at p. 349. I of course recognise that certain of the judicial pronouncements were obiter dicta, and that in the early days one or two doubts or reservations were expressed. I also recognise that the first formulations of the doctrine were less precise than they later became, and that in this sense the law has developed. But the development (except possibly in the latest phase) has been consistent and in logical harmony with the one basic principle, and the cumulative weight of later judicial opinion, beneath which the early doubts and reservations have long been submerged, is to my mind overpowering. To hold that many eminent Judges have repeatedly misstated the solution of the problem before them, or that any rule of law can be so "developed" by judicial decision as to be deprived of the whole of its original content, would be an act of heroism to which I am unequal.

A decision in favour of the validity of this will would travel far beyond the limits of any previous case in our reports, not excepting Shedden's Trustee and Woodard's Judicial Factor. No encroachment has ever yet been tolerated on the basic requirement that a testator must make his own will, and that, when he makes it by designating a class and a person to choose within that class, the designation of both must be his own act, express or plainly implied. To allow a testator to confine himself to designating the class, while deliberately leaving the choice of the individual beneficiaries to anyone who may anyhow acquire a title to administer the estate, is, in my opinion, to authorise that testator to delegate the power to test—at least in a case such as the present in which the class is so vast and amorphous as to include every institution and object capable of being covered by the comprehensive term "charity." A mortis causa declaration of charitable benevolence is not a will. If a testator wishes to leave his money to others than his next of kin, it is not an unduly exacting requirement that he should take the trouble to identify, or to render identifiable, the beneficiaries whom he prefers to his intestate heirs. Let me emphasise that the testators in Shedden's Trustee and Woodard's Judicial Factor did what was necessary to satisfy this test, and the only difficulties which arose in these cases first emerged after the testators were dead.

I am unable to accept the suggestion that the law's favour to charity has any proper bearing on the question before us. That favour receives full and sufficient effect in the acceptance of a bare reference to charity or charities as a sufficient identification of a definite class. Moreover, when it is said that a charitable bequest will not be allowed to fail because of the lack of the necessary machinery to make it effective, or that the Court will effectuate a "general object of charity" or a "paramount charitable intention" when these can be detected independently of some special and particular charitable object which the testator may have imperfectly described, or which is unworkable or has failed, it is necessary to define one's terms. In Young's Trustee Lord M'Laren, in a passage adopted by Lord Cullen in Burgess's Trustees v. Crawford, said this:

"I understand by the ‘general object of charity’ here referred to, not the mere word ‘charity’ as denoting any beneficent purpose, but some definite general object at least … such as education or moral instruction."

And in Burgess's Trustees Lord Johnston, in a passage quoted in Tudor on Charities, (5th ed.) p. 145, said:

"By charity I mean … not charitable purposes generally but some charitable purpose in the concrete, definitely however generally defined."

I respectfully agree with these statements. Even in the case of Magistrates of Dundee v. Morris, of which we heard so much in debate, the testator's charitable intentions were particularised, though imperfectly expressed; and it is impossible to suppose that a boarding school for boys in Dundee would ever have emerged out of any cy près scheme if the late Mr Morgan had merely expressed a desire to give his estate to "charities."

Next I am unimpressed by the argument based on the successive statutory expansions of the powers of trustees and executors-nominate. The true question before us is not what a trustee or executor can do, but what a testator must do if he wishes to exercise the privilege of testation. Incidentally, many of the later formulations of the rule which originated in Crichton v. Grierson were made after, and not before, the statutory provisions on which reliance was sought to be placed.

It was suggested that our decision in this case would have alarming repercussions on the practice, illustrated by such cases as Shorter, whereby judicial factors exercise certain discretionary powers conferred upon trustees. In my view different considerations apply to (a) discretionary powers of a purely administrative character (such as powers to realise heritage, or to sell a business, or to make advances to minor beneficiaries) and (b)the fiduciary discretion reposed in a person designated as the selector of beneficiaries within a defined class. In regard to the first type of power, the question will normally be one of ascertaining the intention of the testator, with special reference to whether there was delectus personæ in his choice of the persons on whom the discretion was conferred. In regard to the latter type of power the single issue is whether the testator has exercised the power to test in a manner recognised as effectual by law, and it is irrelevant to inquire whether he intended to override the law's requirements.

I conclude accordingly that the bequest of residue in the will before us is invalid in respect that neither expressly nor impliedly did this testatrix designate any person to choose the individual objects of her bounty from within the class of charities. But in this larger Court it is necessary to go farther and to indicate our attitude towards the previous decisions the soundness of which is challenged. I agree that it is not easy to draw the line, though I cannot agree that this difficulty justifies the counsel of despair which would abrogate the basic rule. Rigorous logic would best be satisfied by insisting that in every case of this type (as in the ordinary power of appointment) there is delectus personæ in the choice of the person to make the selection. But it is now too late to make a stand at this point. At the other extreme it might be possible to approve both Shedden's Trustee and Woodard's Judicial Factor to this effect that in both these cases the wills left by the testators were good wills. But the reasoning on which the decision in Woodard's Judicial Factor is based seems to me to be in conflict with principle, and I have difficulty in understanding how that case came to be decided as it was in view of the earlier decision in Robbie's Judicial Factor without remitting the case to a larger Court. In my view we can most loyally conform to the principles now accepted in our law by drawing the distinction proposed by Lord Jamieson, and by overruling Woodard's Judicial Factor and leaving Shedden's Trustee to stand.

LORD CARMONT .—I have had an opportunity of reading the opinions of the consulted Judges and of your Lordships. I agree with the opinions of the majority for the reasons which they give.

LORD KEITH .—No difficulty of construction arises, as I see it, with reference to the bequest under consideration. And that, I apprehend, is also the view of your Lordships. The intention of the testator is clear. She directs, "All money after paying, please give to charities." Looking to the framework of the will and the various legacies which precede this bequest I paraphrase this direction as saying, "I wish whosoever shall pay the preceding legacies to give any balance remaining to charities." The question is whether this is an effective bequest in the absence of any appointment by the testatrix of a trustee, or executor, or designation by her of any other person, to select the charities. No decision has been cited which precisely covers this question, though two decisions, in my opinion, come very near to the present case. Accordingly, the argument to which we listened dealt mainly with the question whether on principle, or on the ratio of various decisions, this bequest is bound to fail, or to receive effect.

Broadly the argument for the claimants who represent the heirs in mobilibus of the testatrix is that, as the testatrix has supplied no machinery for selecting the charities, the bequest must fail. Before examining the authorities I would indicate shortly at this stage my reasons for thinking that the bequest is good. First, the Court wherever possible seeks to give effect to the intention of a testator. Secondly, the Court has always shown a benignance towards charitable bequests and, even where a particular charitable bequest fails, will direct the funds involved towards other charitable purposes, so long as the testator has shown a general charitable intention in disposing of such estate. Thirdly, it is not essential to a charitable bequest that the testator shall create a trust, or even appoint an executor. Fourthly, while a testator may appoint a trustee or other person to select particular recipients from a class designated generally as charities, or charitable purposes, there is no case that decides that a testator must appoint such a "selector" to give validity to the bequest. Fifthly, if a testator appoints no one to give effect to a bequest to charities, that is an indication, or at least raises a presumption, that he intends a selection to be made for him by any person who may be appointed to administer his estate, or to make a selection ad hoc. Sixthly, apart from delectus personæ, no distinction in principle can be taken between failure in machinery of selection set up by the testator and failure of the testator to set up machinery. Against all this it is said that a long line of authorities has proceeded on the ratio that some machinery of selection set up by the testator is essential to the validity of such a bequest. It was maintained that the authorities showed that a power of selection, express or implied, must be conferred by the testator on persons named, or sufficiently designed, and that this was required for the validity of the bequest, however clear otherwise the intention of the testator to give to charities might be. Without such a power conferred, the bequest was impossible of execution and failed for uncertainty.

I now turn to the authorities, and I examine first the cases cited to us that were decided by the House of Lords, for by them we are necessarily bound. Hill v. Burns touched merely the fringe of the question, for trustees were there appointed to apply residue to certain charitable purposes, and the challenge of the bequest was that it was invalid from the uncertainty of the objects to which the residue was bestowed. The interest of the case for present purposes seems to me to lie in a doubt expressed by Lord Gifford as to the soundness of the decision of Dick v. Ferguson (where a bequest for the support of such of the granter's descendants as should happen to be in want was held to have failed through the refusal of the trustees appointed to accept office) and in certain observations made as to the ratio of that decision. Crichton v. Grierson decided that it was competent for a testator to appoint trustees to apply his estate to certain objects provided the class of objects pointed to by the testator was sufficiently definite. This judgment finally decided that the fact that a testator had committed to another the power to select individual objects of his bounty from a class sufficiently designated did not render the bequest invalid. Thus was determined the controversy as to the alienum arbitrium, or arbitrium tertii, in testamentary disposition. But the case did not decide that a bequest to charities generally was valid only through the exercise of this arbitrium tertii. Such an issue was not raised. In Magistrates of Dundee v. Morris the House of Lords upheld certain holograph writings of a testator as constituting a bequest to establish a hospital in Dundee for 100 boys. It is unnecessary to follow out the terms by which this bequest was constituted. It is sufficient to say that the bequest involved considerable uncertainty as to the size, cost, character and management of the hospital in question and that the testator appointed no trustees or executors or any other person to execute the bequest. The House of Lords remitted to the Court of Session to prepare a scheme for establishing the hospital. I read this decision as determining that for the validity of a charitable bequest, in which the exercise of a considerable amount of discretion is necessary towards its fulfilment, the creation of a trust or appointment of an executor is not essential. In view of this decision of the House of Lords the words of Lord Handyside who was the Lord Ordinary in the Court of Session are significant. He says (at p. 143):

"How this wish is to be carried out, who are to do so, what fund is to be appropriated for it—none of these things are provided for, or mentioned. The whole of the writer's expression of his will or desire is contained in the words ‘I wish to establish.’ Throwing aside any consideration of the effect to be allowed to the word ‘establish’—a subject which falls under the objection of uncertainty raised against the terms of the bequest, the sufficiency of the word ‘wish,’ as expressing a bequest in terms apt and sufficient, is to be determined. Had there been a conveyance in trust by the deceased of his estate, it is conceived there could be no doubt that such an expression of wish as to an object would have been tantamount to express words of bequest or direction—Crichton v. Grierson . Or if there had been a nomination of executors to take and administer the estate, such words would have been efficacious. Even if there were an omission to name executors, yet the next of kin confirming would have been bound to give effect to a legacy as sufficiently constituted under such an expression of desire in the deceased's will—see per Lord Fullerton in Dundas v. Dundas ."

To this I add the following passages from the speech of Lord Cranworth: (At p. 164) "If a testator expresses a wish for something to be done, which can be done out of his assets, it is in truth a direction that it shall be done. Whether it amounts to an actual gift to some persons who are trustees for doing it, or whether it is the expression of a wish which is binding upon those who but for that expression would have taken his property, is unimportant. It amounts in all respects to a bequest or direction that his assets shall be so applied." And (at p. 166) "There has always been a latitude allowed to charitable bequests, so that when the general intention is indicated, the Court will find the means of carrying the details into operation." Reference was made also to Blair v. Duncan and particularly to Lord Robertson's speech therein. This speech, in my opinion, merely emphasises what was said in Crichton v. Grierson and, by way of contrast, emphasises the necessity of having a definitely ascertainable class before committing to trustees a power to select objects for the testator's bounty out of that class. A bequest for public purposes was held not to be such a class, and therefore a direction to apply a share of residue "for such charitable or public purposes as my trustee thinks proper" was not saved from uncertainty by any power of selection committed to the trustee. Neither the decision nor the speech of Lord Robertson, in my opinion, helps in any way towards a determination of the question before us. Wordie's Trustees v. Wordie is a case which comes very near to the case now under consideration. But it does not, in my opinion, cover it. It is important to observe what was being contended in that case. This appears most clearly from the report in the Court of Session, where the argument of the unsuccessful party is set forth and is also formulated in Lord Dundas's opinion. What was said was that the testator had himself selected a whole class of particular charitable institutions of such a character that it was impossible to ascertain them all and distribute the fund among them. As was stated in the argument the bequest included "every institution or society of every kind which existed for the benefit of women and children throughout the whole world." Further, as the testator himself had made this selection, he had left no power of selection to his trustees. The Court of Session and the House of Lords rejected this argument and held that the trustees had an implied power of selection among the class designated by the testator. Thus was saved a bequest to charities. That decision, however, does not, in my opinion, directly touch the question, whether, if there were no trustees, the selection could be exercised by someone else, a point that seems to me to be left open by Lord Buckmaster, L.C. (at p. 127). I would observe, however, with all respect to Lord Shaw, that he seems to have misread Lord Lyndhurst's language in Crichton v. Grierson . Lord Lyndhurst did not say "that there must be a leaving to trustees to select the particular objects within the class pointed out." He said that there may be a leaving to a trustee to make such selection, that it was competent to leave such selection to the arbitrium tertii.Lastly, Turnbull's Trustees v. Lord Advocate was referred to for a passage in Lord Haldane's speech (at p. 92) where he says that in a bequest for charitable purposes (without apparently the nomination of a selector) "the Courts will disregard a merely subordinate deficiency in particular expression of intention to dispose of the entire beneficial interest to a class, and will even themselves, by making a scheme of some kind, give effect to the general intention that the estate should be disposed of for charitable purposes." This seems to me to accord with the dictum of Lord Cranworth in Magistrates of Dundee v. Morris as well as dicta in other cases, notably that of Lord Dunedin in Burgess's Trustees v. Crawford (at p. 395).

Having examined the House of Lords decisions somewhat fully. I can deal more shortly with those cases cited to us which did not pass beyond the Court of Session, because we are free to review them on principle. The earliest of these is Dundas v. Dundas which is important because it was approved by the House of Lords in Wordie's Trustees and because both Lord Fullerton and Lord Mackenzie referred to the very situation that has arisen in the present case and left the question open. Lord Fullerton, indeed, might almost be read as supporting the effectiveness of the present bequest and he was so understood by Lord Handyside in Magistrates of Dundee v. Morris . Lord Fullerton was also one of the counsel in Crichton v. Grierson . The bequest was almost identical with the bequest in the present case, but the testatrix in addition gave a power to a nephew to see the will executed. It was held that a power of selecting the charities to benefit was thereby conferred on him. I pass over Low's Executors, for neither from the report of the argument nor from the opinion of the Court can I discover any ratio on which the bequest to charities was there held void for uncertainty. Robbie's Judicial Factor v. Macrae and Laurie v. Brown were both cases where the testator showed a clear delectus personæ in the choice of persons to select from among charitable objects. As the persons chosen to make the selection failed, the bequest to charities failed, on the ratio, I understand, that the bequest was for objects to be selected by these persons and no others. That is a clearly distinguishable case from the present. There is, however, a dictum by Lord M'Laren (which went further than the case required) that the appointment of a trustee, or hæres fiduciarius, with a power of selection, was essential to a bequest to charities, because in the absence of such a grant of a power of selection the legacy would fail for uncertainty. I have found no earlier authority for this proposition, with the possible exception of Dick v. Ferguson which was doubted in Hill v. Burns . But it is to be observed that from this date, sixty-five years after Crichton v. Grierson, this proposition becomes common currency of judicial obiter dicta in the Court of Session. Dick's Trustees v. Dick was a case that fell within the ratio of Crichton v. Grierson because there were in existence trustees with a power to select from a class of charitable objects, but Lord M'Laren again repeated himself in the same sense as in Robbie's Judicial Factor. Allan's Executor v. Allan may be classed with Dundas v. Dundas . Here there was a bequest to foreign missions generally, with the appointment of a single executor. It was held that he had the power of selection, but opinions were expressed that this charitable bequest was saved because it was coupled with the appointment of a person to make a selection. It is to be observed, however, that Lord Dunedin indicated that, if the executor failed to make a selection, the Court might appoint a judicial factor to do so. Shedden's Trustee v. Dykes and Woodard's Judicial Factor v. Woodard's Executrix mark an advance on, but not, I think, a departure from, previous authority. In the former case it was held that an assumed trustee could exercise a power of selection among charitable institutions, there being no delectus personæ evinced by the testatrix in favour of her original trustees. In the latter case it was held, where a testator had directed his residue "to be disposed of to charities as my trustees may think best" and his trustees had declined office, that a judicial factor appointed on the estate could make the selection. This decision also proceeded on the view that there was no delectus personæ shown by the testator in his reference to "my trustees." Lord Hunter, however, seemed to think that, if the testator had made no provision for carrying out his intention to benefit charities, the gift would have been invalid.

An examination of these authorities leads me to the following conclusions. For a generation after Crichton v. Grierson, as is illustrated particularly by dicta of Lord Fullerton in Dundas v. Dundas and Lord Handyside in Magistrates of Dundee v. Morris, it was regarded as an open question whether an express appointment of a trustee or executor was necessary to give effect to a bequest to charities. This requisite seems to have been laid down for the first time by Lord M'Laren in Robbie's Judicial Factor in a passage which was really obiter, because the case was decided on the doctrine of delectus personæ. This dictum of Lord M'Laren has been repeated by various Judges since, notably in Dick's Trustees, Allan's Executor and by Lord Shaw in Wordie's Trustees in passages which again were really obiter as not being essential to the judgments reached. In the meantime the House of Lords in Magistrates of Dundee v. Morris had upheld a charitable bequest, in which a great deal of selection and exercise of discretion was involved, where there was no appointment by the testator of trustee or executor, a decision which I may remark incidentally seems to have been followed in like circumstances in Murray. Further in Wordie's Trustees, where the testator had made a selection of charitable objects for himself, the House of Lords held that, to make the bequest effective, trustees appointed had an implied power to narrow the class of the testator's selection by choosing selected members of that class. In that state of the authorities I see no reason why we should give undue weight to obiter dicta of Judges of this Court, however eminent, particularly if we have regard to what seems to be the opposite current in the decisions of the House of Lords. I observe that in Wink's Executors v. Tallent I said (p. 481), "the essential principle is the same in both cases [i.e., in Scotland and England], viz., that the purposes or objects among which trustees may make a selection must be defined with sufficient precision by a testator to prevent his directions being void for uncertainty." I was dealing there with the normal case, but I did not mean that no persons other than trustees could make a selection. And in many of the dicta that have been quoted from Judges in other cases I think the same observation might apply. In principle I am of opinion that, to save a bequest to charities, a power of selection may as reasonably and effectively be exercised by an executor-dative or a judicial factor as by an executor-nominate or a trustee, where no delectus personæ in the appointment of a selector has been evinced by the testator. In the present case I consider that it is plain that that was what the testatrix herself desired, and the primary consideration, in my opinion, is that the intention of the testatrix should prevail. To insist on some express appointment by the testator which by process of assumption or judicial appointment may result, in many cases, in a selection being made a generation or more after the testator's death by persons of whom the testator can never have heard, and to refuse a similar power to one who may be a near relative, appointed executor-dative because of failure to appoint a trustee or executor-nominate, is, in my opinion, to reduce the law to recognition of an empty formalism which will both defeat a testator's intention and run counter to the benignant outlook which the Courts have always shown towards bequests to charity.

In arriving at my opinion I have ignored the history of the Trusts Acts and other legislation commencing with the year 1861 and conferring trust powers on a gradually increasing number of administrators of estates. These Acts were referred to in argument. The existence or absence of specific statutory powers as trustees under these Acts does not, in my opinion, affect the argument. I would only point out that executors-dative had at all times fiduciary duties to perform and were regarded by our institutional writers as trustees to that effect. I refer to Erskine's Institute, III, ix, 42, and Bell's Principles, section 1899. In conclusion I reserve my opinion as to whether this is not a case in which the Lord Advocate, with his traditional title to represent charities, would not have an interest to intervene. I am for sustaining this bequest.