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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The very Reverend Dr. William Jack, Principal, and the Professors of the University and King's College, Aberdeen v. Sir Thomas Burnett, of Leys, Bart. [1846] UKHL 5_Bell_409 (28 August 1846)
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SCOTTISH_HoL_JURY_COURT
Page: 409↓
(1846) 5 Bell 409
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1846.
No. 20
v.
[
Heard
Subject_Mortification. — Trust. — Charity. — Absolute or Conditional. —
A gift, by a deed, in the form of a contract between the donor and a college, whereby the donor granted to the college for the maintenance of bursars in a specified manner, lands, the rents of which at the time were inadequate for the purpose intended, under a condition for re-entry in case of non-performance, and whereby the college as superior of the lands released the donor from past and future feu duties, is a gift of the lands to the college for its own use absolutely, subject to the maintenance of the bursars in the condition, and in no better condition, than that specified, although the lands may have so improved in value as that the rents have become more than adequate for that purpose.
By the charter of erection of King's College, Aberdeen, among other persons to form the members of the college, it is declared that there shall be thirteen scholars unable to provide for themselves, who are to be supported in the college for three years, and for that purpose the following provision is made for them:
“Tredecim insuper in artibus studentibus, cuilibet de duodecim eorundem, duodecim marcas solven per procuratorem communem dicti collegii, pro eorundem sustentatione in esculentis et poculentis una cum cameris et aliis asiamentis infra idem collegium gratis, et pro deo cum omni charitate et mansuetudine ministretur. Tertio decimo studenti quinque tantum libras, de annuis redditibus per præfatum quondam magistrum Duncanum Scherer fundat. Inter quos, quilibet
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per vices deputetur pro custodia portarum loci mandato principalis sub-principalis et actu regentium pro tempore prout eis videbitur expedire, assignetur et deputetur qui custodiæ ejusdem exactam habebit diligentiam ita quod quilibet in turno suo per se et non per alium hebdomadim hujusmodi officium exercebit.”
On the 6th and 12th of October, 1648, a deed was executed whereby it was contractit endit and finallie aggreit betwix “the pairties following to witt the Richt Worschipfull Sir Thomas Burnett of Leyis Knicht Barronett heritabill proprietar of the croftis landis and otheris underwritten on the ane pairt and the Richt Reverend Dr. William Guild, principall of the said colledge Mr James Sandilandis civilist and commoun procuratour of the samen and remanent professouris masteris and memberis thereof under-subscryveris on the oyr pairt in maner forme and effect efter following That is to say forsameikill as the said Sir Thomas Burnett of Leyis taking to his serious consideratioun the great utilitie and proffeit quhilk may redound to the kirk and commounwelth be the floorisching of schoolis colledges and seminaries of learning quherein the zouth may be so educat and trained that therefter be Godis guid providence they may becum guid instrumentis in kirk and commounwelth and considdering that it fallis out ofttymes that many guid spiritis for laik of meanis to maintene thameselffis at schooles and colledges are forcit to leive off the cours of thair studies and to tak thameselffis to servile traidis and oyr baser imploymentis and the said Sir Thomas carieing ane great deale of respect and affectioun to the said Kingis Colledge of Auld Abdn. as to the place quher he had his educatioun thairfore the said Sir Thomas for the glorie of God the weill and utilitie of the churche and commounwelth the advancement of learning in the northerne pairtis of this kingdome the supplie and help of some poore ones that cannot be abill to maintene thameselves at colledges and out of the speciall love favor
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At the date of this contract and for seventy years aftenvards, as alleged by the appellants, the yearly revenue of the four crofts conveyed by it was about 85 l. 1 s. Scots and previously to and at the date of the contract the college, as the superiors of the lands, were in the receipt of 20 l. Scots, of feu duty out of this 85 l. 1 s. The original bursars founded by Bishop Elphinstone, who were referred to in the contract, were then receiving out of the general funds of the college 40 l. Scots each, per annum, or 3 l. 6 s. 8 d. sterling for their maintenance. And for seventy years after the date of the contract the college paid the Leys bursars the same sum as they were then paying to the college bursars, viz., 40 l. Scots per annum, or 120 l. for the three together.
In 1717 the college upon occasion of a royal visitation, returned the following answer to the visitors respecting these Leys bursars:
“That Leys three bursars are maintained out
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of the rents of the crofts of land called Leys Great and Little Croft, and Collation Croft, the yearly produce whereof is 19 ½ bolls of bear, which, communibus annis, can be reckoned no better than 81 l. 5 s., at the estimate of 4 l. 3 s. 4 d. per boll, though the college has, since anno 1648, when this mortification was made, paid yearly to each of these bursars 40 l., by which means, one year with another, by this mortification alone the college loseth about 40 l. Scots, besides the yearly feu and casualties of superiority, of which the college were then superiors, which superiority as appeareth by the copy of the mortification in the Mortification Register, was resigned, and the masters of the college in the foresaid year, 1648, do, by this bargain, oblige themselves, and successors in office, to maintain these bursars at the same rate that the other bursars then founded were maintained, which indeed the masters have hitherto so religiously observed, that, to maintain these bursars annually, they have actually lost by this annual deficiency of the mortification more than the stock of the mortification, besides the accidental losses by broken tenants, by whom, anno 1700, there is lost no less than 72 bolls of bear, of which never a spoonful was recovered, as appears by the bill of rests of bear contained in the procuration accounts from Michaelmas 1698 to Michaelmas 1700, by which it may evidently appear which way the college ran yearly in debt preceding and since anno 1695, which the masters cannot possibly help, unless a way be fallen upon for reducing and rectifying the mortification and contract made betwixt the Laird of Leys and the masters of the college in the foresaid year 1648, which, it is hoped, the honourable Commissioners will think of.”
According to the respondent, ever since 1717, the rent of the lands had been more than sufficient to defray the allowance to the bursars; but according to the appellants, there was then only a slight increase in the yearly rent, and, in 1752, a still further increase occurred, but the rents were still inadequate to the yearly allowance given the Leys bursars.
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In 1762, Lord Deskford, the Chancellor of the University, upon an application to him by the masters of the college, “determined that, for this year, each of the founded and Leys bursars shall be paid 60 l. Scots, and that they shall continue to be paid at that rate, but subject to alterations, if, upon inspection of the college accounts, or from any unavoidable incidental expenses, it shall appear that the college funds are not able to afford them so much.” Thenceforth, the Leys bursars, along with the general bursars, were paid 60 l. Scots each, out of the college funds, being equal to 5 l. sterling. This income was thenceforth and is still given to the two sets of bursars, but they have ceased to be lodged and maintained within the college, as was required by Bishop Elphinstone in regard to his bursars. At what period this ceased was not stated.
Before the proceedings which are about to be mentioned, so early as 1804, according to the statement of the respondent, and as 1824, according to the admission of the appellants, the Leys crofts acquired a new value, by the demand for building-ground, in the neighbourhood of Aberdeen. The rent received from them in 1824 was 310 l. per annum, and now had risen to 318 l. Subsequently to this rise in the rents, the surplus, after providing for the payment to the Leys bursars, was thrown into the general funds of the college.
The respondent, who was the successor of the party to the contract of 1648, called upon the college to apply the whole of the improved rents of the Leys crofts to the Leys bursars. Upon their failure to comply with this request, he brought an action against them for reduction of the contract of 1648, because “the defenders have inverted, and are now inverting, the mortification made by the said deed, by refusing to receive the parties presented to be bursars upon the same by the pursuer, to the full benefit of the bursaries to which they were so presented, and by applying the funds of the mortification, or at least the greater part thereof, to their own use
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The summons was afterwards altered by amendment in these terms: or at least, and although the pursuer should not be found entitled to have regress to the said lands in manner above concluded for, it ought and should be found and declared, that the said defenders hold the said lands, and are bound to administer and apply the whole revenues of the same, for the behoof of three bursars to be presented from time to time by the pursuer and his successors, in terms of the said deed of mortification, and for the entertainment and maintenance of the said bursars of King's College aforesaid.”
The appellants pleaded in defence to this action,—
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I. That, according to the true construction of the contract, they were only bound, as the consideration for which the crofts were disponed to them, to maintain three bursars, to be presented by the respondent or his successors, upon the same footing with the other bursars of philosophy at King's College, founded prior to 1648.
II. That this construction having been uniformly put upon the contract by all parties concerned, for nearly two centuries, any pretence for making a higher demand, or for insisting that they held the crofts on any other footing, was excluded by prescription, both positive and negative. By the positive prescription they had acquired a complete title to the crofts, upon continuing to pay the stipulated yearly consideration; and any pretence upon which the respondent could demand back the lands was excluded by the negative prescription.
III. The contract might competently be construed by the usage following upon it; and inveterate and uninterrupted usage supported the construction maintained by them.
IV. There was no ground for demanding reduction of the contract, and the conclusions to that effect in the summons were absurd.
V. According to any construction which could be put upon the contract, they would be entitled to apply the surplus revenue now arising from the lands, after paying the bursaries, to indemnify the college for the loss sustained by reason of the revenue having been so long inadequate to pay the stipulated bursaries, and of the college having been obliged to make up the deficiency out of their own funds; and as the whole surplus was inadequate for this purpose, and could never indemnify the loss, the action was groundless and unjust.
The Lord Ordinary, ( Cunninghame,) made avizandum to the Court upon cases by the parties, and on the 23rd February, 1844, the Court pronounced the following interlocutor: “
“Find and declare, in terms of the amended declaratory conclusion
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of the summons, that the defenders hold the lands referred to in the summons, and are bound to administer and apply the whole revenues of the same for the behoof of three bursars, to be presented from time to time by the pursuer and his successors, in terms of the deed of mortification, and for the entertainment and maintenance of the said bursars of King's College; and in so far repel the defences, and decern: of consent of the pursuer, find it unnecessary to pronounce any deliverance respecting the other conclusions of the summons.”
This interlocutor was appealed from.
Mr. James Parker and Mr. Mc Pherson for the Appellants.—I. The deed of 1648 is not a purely gratuitous mortification, but it is, as its form purports, of the mixed nature of a contract and a charter. It sets out as a contract between the parties, whereby Burnett contracts that he will convey the lands in question to the college, upon condition that the college will allow him to found three bursaries, and will undertake to educate, bring up, and maintain the bursars, not in such a condition as the rents of the lands would afford, but “according to the manner, measour and qualitie, and as the rest of the burseries of philosophie presentlie in the said college alreddie foundit are educat and entertenit.” And on the other hand the college, in consideration of the conveyance of the land, agrees to discharge Burnett of all arrears of feu duties owing in respect of the lands, and of all subsequent feu duties, and to allow him and his successors to nominate the bursars, and undertakes to educate and maintain them in the way prescribed.
Viewing the arrangement as a contract, no breach is alleged. The college have never refused any nominee presented to them, nor have they ever failed to educate and entertain the nominees in the same way as the earlier bursars. During more than a century, while the rent of the lands was not adequate to this expense, they did not make the condition of the bursars proportionally
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II. But viewing the deed of 1648 as a gratuitous unilateral mortification, the principles of law applicable to such grants are well established in England, though not so well ascertained in Scotland, and will equally defeat the claim set up by the respondent. The rule, in construing all instruments of this kind, is the intention of the granter, that was laid down by Lord Eldon, in the Attorney-General v. Mayor of Bristol, 2 Jac. & Wal. 317. But the Courts have adopted certain rules of construction in the attempt to discover the intention of the donor. One of these is, that where the whole estate is given and apportioned by the donor himself among charitable objects, so as to exhaust the annual value at the time of the gift, that circumstance is evidence of an intention to give any increased value to the same objects. Thetford School Case, 8 Co. Rep. 130; for as Lord Eldon, commenting upon that case, in Attorney-General v. Skinners' Company, 2 Russ. 435, said, If a testator, by his will, gives the whole of the then value of the lands to charitable purposes therein expressed, denoting upon his will that he knows what is the whole value of the lands, giving the yearly value is equivalent to giving the rents and profits, and giving the rents and profits is equivalent to giving the lands themselves.” And in another passage, his lordship says,—“There are many cases which have decided, that, where it appears on the will itself, what was the yearly value of the estates given to charitable purposes,
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The decision in the Thetford Case was followed in Attorney-General v. Wilson, 3 My. & K. 372.
Another rule is, that where a testator expresses upon his will an intention to devote the whole estate to charity, and, without showing upon the face of the will that he is aware of the annual value, gives so much annually as falls short of the entire annual value, and does not dispose of the surplus, the surplus shall go to the charities mentioned and not to the heir-at-law,—charity being the object of the gift, and no other object being declared, Arnold v. Attorney-General, Duke's Char. Uses, 591. Upon which case, Lord Eldon, in Attorney-Genial v. Skinners' Company, 2 Russ, 442, makes this observation,—“The Court has said, that though the testator has not pointed out what was the yearly value of the lands, yet if he has otherwise sufficiently manifested his intention to give the whole of the estate to charitable purposes, the increased rents must be applied to the charitable uses which he has mentioned.”
Another rule is that where a testator, without any expression of charity being his sole object, gives the whole estate, and directs certain specified sums, which do not exhaust the annual profits, to be paid out of them to charity, the payments directed are to
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The present case comes under the last class of cases which
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The gift, therefore, is out and out to the college, under burden only of a fixed payment,—a payment as certain and capable of being ascertained as if it had been specified in money sterling. Upon the authority of the cases which have been cited, therefore, the college is not a trustee merely of the lands to apply the rents, whatever their amount may grow to, on the objects of the charity, but a donee under burden of specified payments, with an absolute right to the surplus.
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It is no doubt true that the payments specified exhausted the rents as they existed at the time of the gift, which in the Thetford Case, and Attorney-General v. Wilson, was taken as indication of intention to give the whole estate to charity, because nothing over was left for any other purpose: but here the payments did more than exhaust the rents. The rents, at the time of the gift, were unquestionably inadequate to maintain the bursars in the manner specified. That evidence, therefore, from correspondence between the amount of the rents and the amount of the payments, of intention to give the whole to the objects of the payment, which was the ground of decision in these cases, is awanting in this. This circumstance of the inadequacy of the rents, goes far to show that the case is not one of gratuitous mortification, but of contract between the parties. At all events, the deed is a gift, upon condition to make the payments,—the donee taking his chance whether the profits will be adequate to discharge them, and having the benefit of any emerging surplus. If the college, while the rents were insufficient, was bound to make up the deficiency, the conveyance must have been without reference to the amount of the rents, one way or other.
III. The inadequacy of the rents was known to Burnett and to his heirs after him; yet with their knowledge, the college maintained the bursars in the manner stipulated, at an annual loss; and when the rents became more than adequate, the college, with the knowledge of Burnett's heirs, applied the surplus to its own use. This contemporaneous and continued understanding of their relative obligations, by the parties themselves, though not conclusive, goes far to show the true meaning of the deed, and will make the House astute to support the construction which the parties have themselves put upon it.
With regard to the Perth Hospital v. Butter's Mortification, Bell's fol. Cases, 173, and Ramsay v. College of St. Andrews, 4. B. M. & D. 1366,—the only cases which have occurred upon this subject in Scotland, the gift in both of them was of the
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Mr. Solicitor-General, ( Kelly,) and Mr. Bethel for the Respondent.—I. Although the deed uses the expression “contractat endit, and finally aggreit,” there is nothing in its structure which gives it the character of a contract. Although the object is expressed to be the education and maintenance of bursaries there is no obligation, by the college, either to maintain or to educate; there is nothing upon which either Burnett or his heirs could have maintained an action to compel performance. Neither is there any condition for re-entry in case of non-performance.
[
Yes, or they might have reduced the number of bursars. There is no contract that they shall maintain the bursars, whatever may be the produce of the land. If the lands had been washed away by a river or the sea, where would have been the obligation to continue the benefit of the charity? What is said in the outset of the deed as to the motives of Burnett, is not contract or agreement, it is mere recital of what had led to his execution of the deed. But, even if there were a positive contract, it would not follow that the surplus rent would go to the college beneficially.
II. The deed, in truth, is a gift, upon trust, for the benefit of charity, and any surplus of the revenue, over the benefits specifically given, must be applied for the objects of the charity. Where the gift is of what is insufficient, or no more than sufficient,
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[
As descriptive of the mode of maintenance.
[
The gift was of a small sum, not sufficient for, but to go in aid of sustentation; the recital of the deed is for the supplie and help of some poor ones that cannot be abill to maintene themselves.” The object of the mortification is the entertainment and education of the bursars, so far as the rents would go, and, in a manner, as nearly similar to the other bursars as the means would admit. But there is no condition that they shall be maintained up to that scale, and not beyond it if the funds would allow. The only condition is in regard to the time and manner of presentation, and the acceptance, by the college, of the patron's nominees. Accordingly, being of this gratuitous nature, the warrandice is confined to the acts and deeds of the granter only. If, therefore, the rents exceed what would be necessary for the maintenance of
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The rents at the date of the grant, the appellants say, were not sufficient for the purpose; of this there is no proof, but, at all events, they were not more than sufficient; the only intention of the founder, therefore, must have been to give the whole for the benefit of the charity. In the Perth case, Bell's fol. Cases, 173, the gift was for the maintenance of four poor persons, and it was held that the whole rents, though greatly increased in amount, must be applied to the charity, and could not be appropriated by the donees of the land.
[
Except that it was for the maintenance of four poor people in the hospital, who, of course, were to be maintained in the same manner as the other persons already in the hospital. So also in the Thetford Case, 8 Co. Rep., the whole rents, as then existing, were given to be distributed in specific sums, but the rent having increased, the surplus was directed to be applied in increasing the benefit to the objects of the charity, and to the increase of the number of objects; so here the rents are given for the sustentation of three bursars, in the same manner as the other bursars, and the rents having increased, they should have the surplus among them. If a gift to charity of the whole rent, which at the time is only adequate for the purpose for which it is given, implies a gift to the charity of the whole estate, and, as a consequence, a gift of any increase in its value, by the same reasoning a gift of the whole estate, where the rents at the time are inadequate for the charity, must imply a devotion of the entire estate to charity.
[
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In all the cases which have been relied on by the appellants, there was either a gift with a surplus, or there were particular terms used in the gift, upon which the judgment was founded.
III. With regard to the practice under the deed, as assisting to discover its construction, there is no evidence of what is alleged, that the rents were either inadequate or more than adequate; the presumption, on the other hand, is, that they were just adequate, and no more; but, however much contemporaneous usage may be admissible to assist in the construction of a deed, doubtful or ambiguous in its terms, there is no room for its introduction here, as the deed is plain and unambiguous, and so far as the usage is contrary to the terms it is inadmissible to overrule its plain import. Ramsay v. College of St. Andrews, 4 D. B. & M. 1366, where usage for upwards of forty years was not allowed to prevail against the obvious terms of the deed of mortification.
Lord Chancellor. ( Cottenham.)—My Lords, differing as I do from the opinions of the majority of the Judges of the Court of Session, by whom the interlocutors appealed from were pronounced, it is satisfactory to me that the question does not turn upon any principle peculiar to the law of Scotland, but upon the construction to be put upon the instrument by which the charity was founded, to be regulated indeed by rules laid down in former decisions, of which none have been quoted from the decisions in Scotland directly applicable to the present case, but of which many are to be found in the reports of cases in England.
It is important in cases of this description, that the rules of construction should, as far as possible, be the same in the two jurisdictions; and I cannot find, in the present instance, any difficulty in applying the well-established rules, which have been adopted and acted upon in this country, to the decision of the Court of Session. In so doing, no principle which has been adopted or acted upon in Scotland will be infringed upon, nor any decision affected.
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It is unnecessary to go higher than the decision of Lord Eldon in the Attorney-General v. Corporation of Bristol, in 2 Jac. & Wal. 320. In that case that very learned Judge reviewed the former decisions from the earliest time, and extracted from them rules which he acted upon, and which have been the guide to all Judges who have followed him. He held the donees of the fund entitled to the surplus which was not otherwise disposed of, they having covenanted to apply the income in certain specified payments to certain charities, of one of which they were the trustees. And he said that intention was the principle, and that the several rules were only indexes of the intention that one of those rules was, that if the donees were to lose, if the fund showed decrease in value, they ought to gain if it increased; and he came to the conclusion that the fund was given to the corporate body, subject to the charge imposed, and not as mere trustees.
In the Attorney-General v. Cordwainers' Company, 3 My. & K. 535, the devise was to a corporation for the purposes of the testator's will, and he gave half of the rents to his brother for life, and directed that the devisees, out of the remainder, should pay certain specified charities, and he gave the whole to his brother in fee, if the corporation should neglect to perform his will. Sir John Leach, Master of the Rolls, thus expressed himself:
“This is a gift upon condition, and not merely a trust; the condition of forfeiture proves the intention to give a benefit, the imposition of a penalty for non-performance of a condition, implies a benefit, if the condition be performed.”
In the Attorney-General v. Smythies, in 2 Rus. & My. 717, the corporation consisted of one warden and five poor brothers; and it was directed that out of the rents 2 l. 12 s. yearly should be paid to each poor brother, and that the remainder should be applied to support the warden and poor of the hospital, and for repairs. Lord Brougham said, “If a fund be given to one
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In the Attorney-General v. Fishmongers' Company, 5 My, & Cr, 11 & 16, I had occasion to consider these decisions, and recognized the doctrine upon which they were grounded.
The result of these decisions is, that, generally speaking, in searching for the intention of the donor, it will be assumed to have been to confer a benefit upon the donee, in the enjoyment of any increase of the fund. 1st. If the gift be to the donee, subject to certain payments to others. 2ndly, If the gift be upon condition of making certain payments, subject to a forfeiture upon non-performance of the condition; or 3rd. If the donee might be a loser by the insufficiency of the fund, which indeed is consequential upon the last. In the present case all these rules concur.
Independently of which, there are provisions and expressions strongly confirmatory of the intention in favour of the college. It is not a gift, but an agreement, for which some pecuniary consideration was given to the college, who were the superiors, to release to their vassal the donor, certain feu duties then due. The deed expresses the motives for the gift, which are: 1st. The promotion of learning generally. 2nd. Giving instructions to those who could not afford to purchase it; and 3rd. The donor's respect and affection for the college. It then provides, that the three bursars of philosophy are to be maintained and educated, according to the manner, measure and quality, and as the rest of the bursars of philosophy presently in the college already founded, are educated and entertained; and it provides for the presentation to three bursarships by the donor and his family, upon pain of forfeiture of the gift by the college, if they shall not give effect to it. The donor then, for the consideration
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It is here that, before the granting part of the deed, it is said. To the effect the said three bursars may be honestly maintained at the said college, and for defraying the charges and expenses of their entertainment,” the donor bound himself and his heirs to sell and dispose, and did thereby sell and dispose, for the entertainment and maintenance of the three bursars above written, the lands in question; terms, which, standing alone, might seem to devote the whole to the maintenance of the three bursars; but it proceeds “to remain with them for the aliment and entertainment of the said three bursars, and according to the provisions and conditions above expressed,” which refers to the recital of the agreement providing that those three bursars shall be brought up, educated, and maintained according to the manner, measure, and quality, and as the rest of the bursars presently in the college.” This reference to the manner, measure, and quality of the education and maintenance of the bursars already existing, fixes and limits the measure of expenditure to be bestowed upon the three thereby endowed, as effectually as if specified sums had been directed to be so applied for that purpose; but this does not appear to have been sufficiently attended to in the former stage of this cause, which may account for the Perth Case in Bell's fol. Cases,
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Being of opinion that the Court below have not put a right construction upon the deed of endowment, it is unnecessary to
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My noble and learned friend clearly showed that the Perth case, which was relied upon, had no application to thepresen t, and I am sure as little application had the St. Andrew's case; there it was quite clear that there were words expressly used and most anxiously used, just the very reverse of these indicating that the bursars who were established should have the whole of the profits, be they great or be they small.
It is ordered and adjudged that the said interlocutor complained of in the said appeal be, and the same is hereby, reversed, and that the said appellants, (defendants,) be assoilzied from the whole conclusions of the summons mentioned in the appeal, and that the respondent do pay to the appellants, (defendants,) their costs in the proceedings in the Court of Session, before bringing this appeal; And it is further ordered, that the said cause be remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this judgment.
Solicitors: G. and T. W. Webster — Richardson and Connell, Agents.