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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mrs. Catherine Bruce or Mitchell and Others (next of kin of James Bruce) v. The Ministers and Kirk Sessions of the Presbytery of Deer [1867] UKHL 2_Paterson_1437 (22 March 1867)
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Cite as: [1867] UKHL 2_Paterson_1437
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SCOTTISH_HoL
Page: 1437↓
(1867) 2 Paterson 1437
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 54
v.
Subject_Testament — Bequest to poor of a Presbytery — Charity — Void for uncertainty —
B. by his will said “ the whole balance of my property I leave to poor of this Presbytery, to be divided, I mean the interest, by the sessions of the several churches, but to be paid to all Christians except Roman Catholics.” No executors were nominated.
Held (affirming judgment), The bequest was not void for uncertainty. 1
This was an appeal from interlocutors of the Lord Ordinary and Second Division in an action of multiplepoinding, at the instance of Alexander Bruce, Esq., executor dative of the late James Bruce, Esq., as to the construction of a clause in the testament of the said James Bruce, which was as follows:—“The whole of the balance of my property I leave to poor of this Prisbitery, to
_________________ Footnote _________________
1 See previous report
3 Macph. 402;
37 Sc. Jur. 198.
S. C. L. R. 1 Sc. Ap. 96;
5 Macph. H. L. 20:
39 Sc. Jur. 343.
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The Lord Ordinary held, that the above bequest was not void or ineffectual in respect of uncertainty, or on any other ground. On reclaiming note, the Second Division adhered to this part of the interlocutor. The next of kin appealed against these interlocutors.
The appellants in their printed appeal case submitted, that the interlocutors should be reversed, for the following reasons:—1. Because the claim for the ministers and kirk sessions of the Established Church within the bounds of the Presbytery of Deer, is not at the instance of parties nominated in the testamentary writing of 2d October 1852, or of parties entitled to the bequest, or to administer it. 2. Because the bequest of residue contained in the said testamentary writing is void for uncertainty. 3. Because the testator has failed to nominate trustees or executors to administer or apportion the funds, or to determine the objects of the said bequest. 4. Because the bequest of residue is incapable of being carried into effect.
The Attorney General (Rolt), Anderson Q.C., and Skelton, for the appellants.—This bequest is void for uncertainty. No trustees being named, the Court will not interfere to appoint trustees where a trust is so uncertain as this— Dick v. Ferguson, M. 7446; Merchant Company v. Trades of Edinburgh, M. 7448; Dundas v. Dundas, 15 S. 428; Wigram on Wills, 201. It is true, that in some instances the Court has supported a bequest of a similar description where the testator expressly stated, that he confided certain discretionary powers to his trustees, or gave some means of overcoming the uncertainty— Hill v. Burns, 2 W. S. 80; Crichton v. Grierson, 3 W. S. 329; Ewen v. Magistrates of Montrose, 4 W. S. 346; Magistrates of Dundee v. Morris, 3 Macq. App. 134; ante, p. 747; Liddle v. Kirk session of Bathgate, 16 D. 1075. Here there is incurable uncertainty in the persons to whom the capital of the fund has been bequeathed,—in the parties who are to divide the interest among the beneficiaries,—in the parties who are to be beneficiaries, and the proportions in which the shares are to be taken. The poor of a parish, according to the practice in Scotland, include casual and able bodied poor, as well as statutory poor— Liddle v. Kirk session of Bathgate, 16 D. 1075; Hardie v. Kirk session of Linlithgow, 18 D. 37; but no meaning can be given to the poor of a presbytery. Such a legacy to the poor of certain parishes is void, as against public policy, and injurious to morals— Johnstone v. Mackenzie's Executors, 14 S. 146.
Sir R. Palmer Q.C., Young, and Cheyne, for the respondents, were not called upon.
It is quite clear, that this was intended as a charitable bequest; and therefore it must be carried out if the general object of the testator can be ascertained. When it is said, that charitable bequests must receive a benignant construction, the meaning is, that when the bequest is capable of two constructions, one which would make it void, and the other which would render it effectual, the latter must be adopted. And I agree in the remark made by my noble and learned friend Lord Cranworth in the case of Mag. of Dundee v. Morris, where he says, “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 execution.”
The bequest in question seems to me to define with sufficient certainty the subject, the objects, and administrators of the charitable gift. The subject is the “balance” or residue of the testator's property. This is admitted on the part of the appellants to be perfectly clear; and the objects are, in my opinion, sufficiently defined. The testator says, “I leave to poor of this Presbytery.” Now the word “poor” in the context, is equivalent, in my opinion, to the expression “the poor,” which is commonly used substantively; but it is not the poor everywhere; but to “the poor of this Presbytery,” which must be taken as a local description. The proper meaning of “Presbytery,” is a particular kind of Church Court. Now, taking the words “the poor of this Presbytery” in this sense of the word, “Presbytery” is unmeaning. And therefore it cannot have been intended by the testator to be so used. In popular language it may mean the territory over which the jurisdiction of the Church Court called the Presbytery extends. Adopting the word in that sense, we have the object sufficiently defined to be the poor of a particular district. It is said, that the bounds of Presbyteries vary from time to time. But at any given time they must have a certain limit, and the expression “the Presbytery of Deer in the county of Aberdeen,” where the testator lived at the time when he made his will, is involved in no uncertainty at all.
Therefore the subject and the objects are, in my opinion, clearly defined, and we have only now to consider whether the administrators of the charitable gift are also described with sufficient certainty. The words are “to be divided, I mean the interest, by the sessions of the several churches.” That must mean to be distributed, not to be divided, but to be distributed by the
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I entirely concur in the last observation which has been made by my noble and learned friend, that when Sir Roundell Palmer with his usual generosity has not in terms consented, but has manifested no disinclination, that the costs should be given out of the estate, the appellants must consider themselves indebted to the bounty of their opponents for that which certainly they would not have obtained from the strict rules of justice in this House.
Interlocutors affirmed; the costs of the appeal to be paid out of the estate.
Solicitors: Appellants' Agents, Tods, Murray, and Jamieson, W.S.; Bircham, Dalrymple, Drake and Bircham, Westminster.— Respondents' Agents, Cheyne and Stuart, W.S.; Grahames and Wardlaw, Westminster.