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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Wordie's Trustees v. Wordie [1916] UKHL 291 (28 February 1916)
URL: http://www.bailii.org/uk/cases/UKHL/1916/53SLR0291.html
Cite as: 53 ScotLR 291, [1916] UKHL 291
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SCOTTISH_SLR_House_of_Lords
Page: 291↓
House of Lords.
(Before the
v.
(In the Court of Session, January 15, 1915, 52 S.L.R. 306, and 1915 S.C. 310.)
Subject_Trust — Charitable and Educational Beqnests — Un certainty.
Facts:
Held that a direction to trustees, duly appointed, “to pay over the balance or residue of my estates to or for behoof of such charitable purposes as I may think proper to name in any writing, however informal, which I may leave, but failing my leaving such writings, then to such charitable institutions or societies which exist for the benefit of women and children requiring aid or assistance of whatever nature, but said institutions and societies to be under the management of Protestants”—the testator having left no such writing—was not void from uncertainty, neither on the ground that no power of selection was expressly conferred on the trustees, nor on the ground that the objects to be benefited were insufficiently pointed out.
This case is reported ante ut supra.
Miss Janet Wordie and others, the testator's whole next-of-kin, second parties, appealed to the House of Lords.
At the conclusion of the argument on behalf of the appellants—
Page: 292↓
It is my clear opinion that neither of those contentions can succeed. The first 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. Indeed I cannot help thinking that a consideration of the argument of the learned counsel for the appellants must lead one to the conclusion that that is the necessary result of what the testator has done. 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 for some bodies answering that description that some other person may select; and there is no other person in whom the power of selection can reside than the trustees in whose hands the money rests.
That is my opinion upon reading this will, but if I had been less certain and confident of the view I entertain I should have felt great uneasiness about forming an opinion which must alter the law in Scotland as it has been accepted ever since 1837, when the case of Dundas v. Dundas, (1837) 15 S. 427, was decided. In that case there was a direction that money should be laid out upon charities, and an executor was appointed with power to see that the will was executed. It was held that this necessarily gave to the executor the power of selecting among charitable objects those which should receive the benefit of the testator's bounty. That is in my opinion a case far less strong than the present, where the money is in fact in the hands of trustees who are expressly endowed with all the necessary powers for executing the testator's wishes. I think, therefore, that the learned Judges in the Extra Division of the Court of Session were quite right when they decided that an implied power of selection must reside in those trustees, and when once that is assumed all difficulty ends.
There does indeed remain the question which Mr Macmillan argued, that the objects upon which that discretion is to be exercised are too uncertain to receive recognition by your Lordships' House, but I find great difficulty in following that argument. The one governing phrase within which all these institutions must necessarily fall is that they are to be charitable institutions. It therefore is upon the face of it a charitable gift, and there is nothing to show that there will be any difficulty in discovering institutions of a charitable nature that answer the description which the testator gives. I cannot think that the trustees will find themselves greatly embarrassed in selecting objects within that description, but if they do the assistance of the Courts will be open to them, and this trust can, I have no doubt, be validly executed according to the law of Scotland as it would be according to the law of England.
There only remains the question of costs. The whole difficulty in this case (and it is a difficulty) is entirely due to the testator's own act. It certainly is not surprising, having regard to the scope and character of the will, that the next-of-kin should have availed themselves of every opportunity of attempting to assert that this residuary bequest was not good, and in all the circumstances of the case I am of opinion that the costs of this appeal should be paid out of the residuary estate.
It is not disputed that it is perfectly competent for a testator to benefit classes of persons or classes of objects, and to leave to his trustees the task of selecting, among the classes generally pointed at by him, the particular objects or the particular persons who are to receive the benefit of his will. 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, but it seems to me that the
Page: 293↓
Now in the will before us the testator appoints trustees in whom he has full confidence, and he gives to them every power which is necessary for carrying out his will. When you come to the particular direction of the will upon which the question arises, it is obvious that unless there be a power of selection in somebody that purpose fails; it is a purpose that cannot be carried out without selection, and I apprehend upon the authority of the case of Dundas that it is enough to say that when he has appointed trustees to carry out all the purposes of his will, with all the powers that are necessary to enable them to do so, he gives them by implication such power of selection as is necessary to make this particular bequest effective. That there may be difficulties in the actual selection is possible enough, but that is not a point that goes to the validity of the will. I take it that the true doctrine upon that point is that laid down by Lord Loreburn in the case of Weir v. Crum Brown, 1908 SC (HL) 3, 45 S.L.R. 335, that all that is required is that the description should be sufficiently specific to enable men of common sense to make their selection among the objects which are within the ambit of the testator's bequest. I am unable to believe that men of common sense would have any difficulty in selecting proper objects to satisfy the testator's bequest in this case.
In the case in 1837 of Dundas v. Dundas, (1837) 15 S. 427, the object pointed out by the trust deed was that the money should “be laid out in charities.” The only power given was a “power to see this will executed.” There was no further specification than this, and the Court upheld the power of the nominee of the grantees to exercise a power of selection and appropriation among charities.
That was, in my opinion, a broad indication that the law of Scotland interpreted the propositions laid down by Lord Lyndhurst in the sense that a general power to see a will executed or a general nomination of executors under the will, or the constitution of a trust to carry out the trust purposes effectively, worked out in Scottish legal practice the proposition so laid down. That practice was followed for many years. Then there came Allan's Trust v. Allan, 1908 S.C. 807, 45 S.L.R. 579, and I desire in your Lordship's House respectfully to record my adhesion to the opinion expressed in that case by my noble and learned friend Lord Kinnear. Following these cases is the present, and it appears to me that it would have done violence to the sequence of decisions following upon the propositions laid down by Lord Lyndhurst if any other result than that arrived at by the Extra Division had been reached.
Their Lordships dismissed the appeal with expenses to all parties out of the residuary estate of the testator.
Counsel for the First Parties (Respondents)— Hon. Wm. Watson, K.C.— J. B. Paton. Agents— M'Grigor, Donald, & Company, Glasgow— Macpherson & Mackay, S.S.C., Edinburgh— Grahames & Company, Westminster.
Counsel for the Second Parties (Appellants)— H. P. Macmillan, K.C.— C. H. Brown. Agents— Mackenzie, Robertson, & Company, Glasgow— Martin, Milligan, & Macdonald, W.S., Edinburgh— John Kennedy, W.S., Westminster.