Allan's Executor v Allan
| Jurisdiction | Scotland |
| Judgment Date | 17 March 1908 |
| Docket Number | No. 116. |
| Date | 17 March 1908 |
| Court | Court of Session |
Lord Mackenzie, Lord Kinnear, Lord President, Lord M'Laren.
Charitable and Educational Bequests and Trusts—Constitution—Uncertainty—‘Foreign Missions’—Executor.—
A Scottish testator, by his holograph general settlement, provided,—‘The residue of my property I give and bequeath for the benefit of foreign missions in India, China, Africa, and South America, or any other in the foreign field suitable. I appoint the Rev. W. Watson, Kiltearn, as my executor, at a remuneration of, £20 sterling.’
Held that the bequest was a bequest for charitable purposes, and was not void from uncertainty, the bequest being to a definite class, coupled with the appointment of a person (the executor) having power to select the objects falling within the class on whom the benefit of the bequest was to be conferred.
Dundas v. Dundas, Jan. 27, 1837, 15 S. 427, followed.
The pursuer and real raiser in this action of multiplepoinding was the executor-nominate of Donald Allan, M.D., Evanton, Ross-shire, who died on 24th August 1906, leaving a holograph will in the following terms:—‘I, Donald Allan, M.D., Evanton, in the county of Ross and Cromarty, make the following disposition of my property, moveable and heritable:—I hereby give, devise, and bequeath [certain legacies]. The residue of my property I give and bequeath for the benefit of foreign missions in India, China, Africa, and South America, or any other in the foreign field suitable. I appoint the Rev. W. Watson, Kiltearn, as my executor, at a remuneration of Twenty pounds stg.’
The fund in medio was the residue of Dr Allan's estate.
The claimants were (1) Robert Allan and others, the whole next of kin of the testator and the whole parties interested in his intestate succession, both heritable and moveable; (2) the Very Rev. John M'Murtrie, D.D., and others, being the Foreign Missions Committee of the General Assembly of the Church of Scotland, and (3) the Rev. Alexander Miller, D.D., and others, being the Foreign Missions Committee of the United Free Church of Scotland.
No claim was lodged by the executor.
The claimants Robert Allan and others claimed the whole fund in medio, and pleaded;—(1) The bequest of the residue of the deceased's estate contained in his said holograph will being void from uncertainty, the said residue has fallen into intestacy. (2) The claimants, being the parties entitled to succeed to the deceased's estate ab intestato, are entitled to be ranked and preferred on the fund in medio in terms of their claim. (3) The Foreign Missions of the Church of Scotland and the United Free Church of Scotland being, neither of them, sufficiently identified as the missions to which the deceased intended to bequeath the residue of his estate, the claims stated on behalf of these missions should be repelled.
The claimants the Foreign Missions Committee of the Church of Scotland averred that they were the foreign missions designated by the testator, and stated the grounds upon which their contention was based.*
They claimed (1) to be ranked and preferred to the whole of the residue absolutely, or otherwise, to the whole of the residue, subject to such directions with regard to distribution among the claimants' foreign missions as may be directed by the pursuer and real raiser. (2) Alternatively, to be ranked and preferred along with the claimants the Foreign Missions Committee of the United Free Church of Scotland to the whole of the residue in equal portions absolutely, or otherwise, to the whole of the residue in equal portions, subject to such directions with regard to the distribution of the said equal portions among the claimants' foreign missions and those of the United Free Church of Scotland as may be directed by the pursuer and real raiser.
They pleaded;—(1) The claimants' missions being those designated by the testator as his residuary legatees, are entitled to be ranked and preferred absolutely in terms of the first alternative of the first claim, or otherwise, to be ranked and preferred in terms of the second alternative of their first claim, subject to such directions as the pursuer and real raiser may give with regard to the appropriation thereof among the particular missions of the claimants' Church. (2) Alternatively, the foreign missions of these claimants' Church, and those of the claimants the Foreign Missions Committee of the United Free Church of Scotland, being those designated by the testator as his residuary legatees, are entitled to be ranked and preferred to the whole residue in equal portions absolutely, or otherwise, to the whole of the residue in equal portions, subject to such directions with regard to the distribution of the said equal portions among the claimants' foreign missions and those of the United Free Church of Scotland, as may be directed by the pursuer and real raiser.
The claimants the Foreign Missions Committee of the United Free Church of Scotland averred that they were the foreign missions designated by the testator, and stated the grounds upon which their contention was based.*
The claim and the pleas for these claimants were in the same terms as those stated for the Foreign Missions Committee of the Church of Scotland.
On 21st November 1907 the Lord Ordinary (Mackenzie) allowed a proof before answer.†
The claimants Robert Allan and others reclaimed.
The case was argued before the First Division on 21st January 1908.
Argued for the reclaimers;—The Lord Ordinary's judgment could not be supported on the ground stated by him. This was not a case of a bequest to a definite person insufficiently designated. The terms of the bequest were so vague that no proof was competent to shew whom the testator meant to benefit. Nor could the respondents take advantage of the rule stated in Crichton v. Grierson,1 approved in Blair v. Duncan,2 and applied in Dundas v. Dundas,3 the rule, namely, that a bequest was valid if made in favour of a definite class, with power to a person named to select the objects within that class. Both of these essentials were lacking, for there was neither a definite class nor a person with power to select.4 The disjunctive clause ‘or any other’ would include missions of any kind existing or not existing at the testator's death. This was not a charitable bequest,
and was not entitled to the favourable consideration accorded to bequests of that nature.1 The wide definition of ‘charitable bequests’ which was given effect to in PemselELR,2 was dissented from by Lord Halsbury and Lord Bramwell, and in any event did not cover this bequest.
Argued for the respondents the Foreign Missions Committees of the Church of Scotland and of the United Free Church of Scotland;— There was a definite legatee to whom the bequest had been left. The only difficulty arose from the insufficiency of the designations, and the exact identity of the legatee was a proper matter to be remitted to proof.3 In any event, the bequest fell to be sustained as being a bequest to a definite class combined with a power of selection in a person named by the testator. ‘Foreign missions’ had a definite meaning, which would give validity to the will, and the Court would accordingly assume that that was the meaning intended by the
testator.1 The clause ‘or any other,’ extended the field, but did not render the class of objects more vague. There was an appointment of an executor to whom the testator had delegated the duty of selecting the objects, and this distinguished the case from those in which no such appointment had been made and where the bequest had been held void.2 This was a holograph will, not prepared by a lawyer, and in such a case the Court were willing to overlook the absence of legal form in order to ascertain and give effect to the wishes of the testator.3 Further, this was, in effect if not in name, a charitable bequest, and as such entitled to favourable consideration. Provided the general intention were clearly indicated, the Court would always give effect to such a bequest, if necessary, by preparing and approving of a scheme.4
At advising,—
Lord Kinnear.—The question in this case is whether a certain bequest is void by reason of uncertainty. The will is a very simple one, and whatever doubt may arise as to the efficacy of the bequest in dispute its mere interpretation, in my opinion, does not present any serious difficulty.
The testator leaves certain legacies of no great amount to relations, and a legacy of £10 to a servant, and then he proceeds,—‘The residue of my property I give and bequeath for the benefit of foreign missions in India, China, Africa, and South America, or any other in the foreign field suitable. I appoint the Rev. W. Watson, Kiltearn, as my executor, at a remuneration of £20 stg.’ It appears to me that there can be no uncertainty as to the meaning of these words. I cannot think it doubtful that ‘foreign
missions’ in the mouth of a Scottish testator means an enterprise conducted by some Church or association in this country for the propagation of the Gospel in foreign parts. The bequest therefore, is, in my opinion, very clearly a bequest for the benefit of foreign missions. But then the testator does not define the particular missions which are to be benefited, nor the particular Church or association by which these missions are to be conducted. It is a bequest in favour of foreign missions in general; and so considering it, I should agree with the observation of the Lord Ordinary that it is not sufficiently specific to be supported unless the testator has given a power to a trustee acting for him to select among the class of foreign missions those to which the bequest is to go. But then immediately following the bequest to the foreign missions there is the appointment of the Rev. Mr Watson to be the testator's executor. This is a will in ordinary language, written by a layman, and in ascertaining what he means by appointing an...
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