United Kingdom House of Lords Decisions

Lord Buckmaster—The question that arises for decision in this case is as to the effect of a gift contained in a mutual settlement and trust-disposition of James Caldwell and Margaret Telfer or Caldwell, which was registered in the Books of Council and Session on the 29th December 1917.

By this will a considerable number of pecuniary legacies were given to a variety of specified benevolent and charitable objects. These objects were all either included under the phrase “institution” or “association” or “incorporation,” not necessarily meaning that they were thereby distinct, but that the name in each case involved either the one qualification or the other. Consequently no help can be obtained from these words in construing a similar phrase in other portions of the settlement. After these provisions the trust-disposition continued in these terms—“And in the last place, should there be any further funds available we direct the trustees to divide the whole of the residue and remainder among such charitable and benevolent institutions in Glasgow and Paisley, and in such sums not exceeding the sum of Three hundred pounds sterling to any institution as in their discretion may seem best, and the trustees shall be the sole judges as to charitable and benevolent institutions which may participate in such residue, and as to the sum or sums which may be so paid to each.” It is contended on behalf of the next-of-kin, who are the present appellants, that this gift is too vague to be valid; that the words “charitable” and “benevolent” are not capable of such a construction as will cause the wider meaning of the word “benevolent” to be controlled by the less extensive significance of the word “charitable”; and that in consequence there is imposed upon the trustees a duty which is impossible for reasonable men adequately to discharge, and that therefore by reason of the uncertainty of the gift it fails and there is an intestacy.

It is unnecessary for this House to decide whether or no a gift to benevolent institutions alone in the words that are contained here would or would not be adequate. In the authority that has been referred to in 1918 Appeal Cases, p. 337, there are statements to be found in the judgment of my Lord Atkinson which certainly suggest that even such a gift might be good because the limitation of the area within which the institutions are to be selected, and the fact that the benevolent gifts themselves must be confined to something in the nature of an institution, would sufficiently limit the gift to enable it to be effectively carried out by the trustees. But it is unnecessary to decide that point, for this reason—The judgments appealed from are based upon the view that “charitable and benevolent” really mean such charitable gifts as are benevolent, and there is considerable authority both in Scotland and in England to show not only that such a construction is possible, but that in the absence of words to the contrary it is the one that ought to be adopted. The case of Hill v. Burns, reported in 2 Wilson & Shaw, accepts that as the true view of the will in that case where a similar phrase was used, although I agree with Mr Sandeman that the actual point does not appear to have been the subject of elaborate discussion. To the same effect is the case of Miller v. Black's Trustees, reported in 2 Shaw & M'Lean; and finally in the English Courts in the case of Jarvis v. The Corporation of Birmingham, [1904] 2 Ch 354, the actual words “such charitable and benevolent institutions as the trustees shall in their discretion determine” were the subject of examination by Lord Justice Farwell, then Mr Justice Farwell, who, after investigating both the Scotch cases and the earlier English cases which appear to favour the contention of the appellants in this case, decided without hesitation that the gift ought to be so construed that the word “and” should be given its proper literary meaning, and that the word “benevolent” should be subject to the control effected by its conjunction with the word “charitable.” The learned Judge stated his view in these words—“Having regard to the curiously technical meaning which has been given by the English Courts to the word ‘charitable,’ I am not surprised that the testator should have desired that the institutions should be not only charitable but should be also benevolent. There are certainly some which I think it would be difficult to say are benevolent, such as the distribution of the works of Joanna Southcote, although that was held to be charitable. I think the testator here intended that the institutions should be both charitable and benevolent, and I see no reason for reading the conjunction ‘and’ as ‘or.’” With those observations I am in entire agreement. I see no reason why a word which has a perfectly plain meaning and should ordinarily be read as signifying something conjoined with what has gone before should have its meaning altered in order that a gift which upon the face of it would be good should be made bad by severing two things which the testator had himself joined together.

For this reason I think that the judgment appealed from is correct, and that this appeal should be dismissed, with costs.

Lords Atkinson, Shaw, Sumner, and Wrenbury concurred.