LORD KEITH .—The testatrix here by her will gave directions to her trustees, subject to a liferent which was exercised, to convey to certain ex officiis trustees her property known as "Hayfield" to be in all time maintained and managed by them, with the advice and assistance of the Medical Officer of Health for the time being, under the style and designation of "The Hay Memorial" either as a home for aged and infirm Shetland seamen, a surgical hospital or a convalescent hospital, whichever the said trustees might consider the most beneficial for the islands of Shetland. The testatrix died in 1937, and it was not possible, owing to the intervention of a liferent, to consider the carrying out of that bequest until 1946, after which the ex officiis trustees declined office and a judicial factor was appointed in December 1948, who has now presented to the Court this petition for directions. His purpose is to ascertain whether the bequest is a bequest that falls to be carried out as a charitable bequest, or whether the bequest has failed. I should have added that in addition to the conveyance of the property of Hayfield the testatrix transferred to the trustees immediately a sum of £3000 for the upkeep of the house and provided for the same purpose further sums that would fall in at later dates amounting to a further £1500 and £3000 respectively. The judicial factor is satisfied that it is impossible to carry out the bequest pro modo et forma, because of insufficiency of funds, deterioration of the property and other reasons which I need not go into. That being so, the problem with which we are faced is this, whether the testatrix has evinced a general charitable intention which will require the preparation and presentation to the Court of a cy près scheme or whether the bequest is of such a particular character that, it being nowise possible of fulfilment, it has failed, when the funds in question will then fall under the will to the minuters who have appeared in this process. The case which was chiefly founded on for the view that this was a bequest of such particularity that it has, in the circumstances that have arisen, failed is the case of Tait's Judicial Factor v. Lillie . I do not find it necessary to examine this case in any detail. Suffice it to say that, in my opinion, that was a very special case in which the testator indicated that a particular house should be used for a very special purpose, and that that was his sole intention. It was held in that case that the house could not be used for that special purpose, and the Court accordingly held that the bequest had failed. The bequest further seems to have been regarded as a bequest for a public purpose, rather than of a strictly charitable character, but, in any event, in the circumstances of that case it was held that there was no general charitable intention evinced by the testator. I think, in contrast to that case, that we have here a general charitable intention evinced by the testatrix. It is not necessary to say more than to point to the fact that she had in view as possible objects of her bounty aged and infirm Shetland seamen, and was desirous of providing something beneficial for the islands of Shetland. It is quite true that she indicated as the purposes which she had particularly in mind three purposes—a home for aged and infirm Shetland seamen, a surgical hospital and a convalescent hospital—but I am not satisfied that there was any intention on her part to confine her benefaction to these three purposes and these three purposes only. In my opinion, there is in the terms of her bequest evidence of a general charitable intention, and, if that is so, that is sufficient to enable us to answer the question which has been put to us in the negative, namely, to the effect that the bequests have not failed.
LORD CARMONT .—I agree.
LORD PRESIDENT (Cooper).—I also agree.
