Angus's Executrix v Batchan's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1949 |
| Docket Number | No. 40. |
| Date | 25 March 1949 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION. with three consulted Judges.
Lord Mackintosh.
Succession—Charitable bequest—Validity—Uncertainty—Gift of residue to "charities"—No conferment of power to select particular objects of bequest—No appointment of trustee or executor—Trust—Discretionary powers of trustees.
A holograph will, after providing for certain legacies, concluded with the words "All money after paying, please give to charities." The will contained no instructions as to the selection of particular charities, and no trustee or executor was appointed.
Held by a Court of Seven Judges (diss. the Lord Justice-Clerk and Lord Keith, rev. judgment of Lord Mackintosh) that the bequest of residue was void for uncertainty, in respect that a bequest to charities without any specification requires for its validity the appointment, express or implied, of some person or persons to select the particular beneficiaries, and that, where there is no such appointment, or the appointment fails, it is not competent for the Court to supply the deficiency.
Per Lord Jamieson, "Where a power of selection among charities is not expressly or by implication conferred on nominated trustees personally, it may be exercised by assumed trustees."
Woodard's Judicial Factor v. Woodard's Executrix, 1926 S. C. 534, overruled; Shedden's Trustee v. Dykes, 1914 S. C. 106, discussed.
Mrs Anne Sievewright Batchan or Angus died on 9th October 1944, leaving a holograph will dated 30th March 1937 and two relative codicils by which she bequeathed a number of specific and pecuniary legacies. The will concluded with the words "All money after paying, please give to charities." No trustee or executor having been appointed by the will or codicils, Mrs Elizabeth Kerr Angus or Stewart, one of the legatees, obtained appointment as executrix-dative and thereafter brought an action of multiplepoinding and exoneration for the purpose of ascertaining the parties entitled to the residue. Claims were lodged (1) by the pursuer and real raiser, and (2) by the whole next of kin and heirs in mobilibus ab intestato of the testatrix, viz., (a) her sister, Miss Jane Sutherland Batchan, and (b)William Ross Carswell, as administrator of the estate of a brother, John Sutherland Batchan, who had survived the testatrix but had since died. The sister also died before the case was disposed of, and her trustees were sisted in her place.
The pursuer and real raiser pleaded, inter alia:—"(1) On a sound construction of the testatrix's testamentary writings, the residue of her estate was validly bequeathed to charities, and this claimant as executrix is entitled to be ranked and preferred to the fund in medio for the purpose of carrying out the said bequest."
The next of kin averred that the bequest of residue was void for uncertainty, and pleaded, inter alia:—"(1) The said purported bequest of residue being null and void, as condescended on, the residue of the said estate falls to be divided as intestate estate of the testatrix."
On 19th October 1948, after a Procedure Roll discussion, the Lord Ordinary (Mackintosh) repelled the claim for the next of kin and continued the case to enable the pursuer and real raiser to apply for the appointment of a judicial factor on the executry estate.
At advising on 25th March 1949,—
LORD JUSTICE-CLERK (Thomson).—The decision of this case turns on two elementary propositions. First, in order to make a valid will, a testator must sufficiently indicate his intention that on his death certain subjects are to pass to certain objects. Second, a testator must make his own will; he cannot confide the making of it to another
person. This latter proposition is subject to the qualification that, if a testator sufficiently designates a class of objects whom he desires to benefit, it may be left to another person to select individual beneficiaries from within the designated class. This qualification arises from the general principle that a man must make his own will. He still in the view of the law makes his own will if the class of objects is sufficiently designated, so that the alienus is in effect carrying out the testator's intention within limits defined by the testator. It is well established that charity is such a class. But I do not see that in this particular case it matters that the class of objects is charity. It seems to me that the same principles fall to be applied, provided the class is one which the law recognises as sufficiently designated to let in the arbitrium alienum (see per Lord Robertson in Blair v. DuncanELR1 and Lord Kinnear in Allan's Executor2). The word "charity" has performed its function when it has fixed the class. I do not seek to invoke the favour which the law accords to charity for any further purpose.The issue in the present case seems to me to be, Is it essential to the validity of a will per alienum arbitrium that not only must the class of objects be sufficiently designated but that thealienus should be personally chosen by the testator? Ifdelectus personæ is essential, the failure to nominate the alienus is fatal. There are no technical reasons for affirming the necessity of the testator's making a personal choice. The will does not lack formal validity if the testator is silent. If personal choice is essential it must be on the ground that thealienus is in some real sense an extension of the testator's personality. In the case of a nomination of a relation or a friend, one can see that such a person might be so familiar with the testator's views and outlook that he would carry on broadly on the lines which the testator might himself have been expected to have done. But the testator's idea in nominating the alienus may be to surrender his own judgment to the alienus and to prefer his arbitrament to his own. This of course is still the selection by the testator of a known alienus in whom he reposes confidence and whom he leaves to deal with the matter according to his own ideas. To that extent the idea of an extension of the testator's personality is still present. The testator is still operating through the medium of a known and trusted agent. Again, there may be the selection of an alienus as the holder of an office. If a testator nominated the Dean of the Faculty of Advocates ex officio to select among a properly designated class, such a bequest would be good. But the element of personal choice becomes almost negligible. All that is left to the testator is the belief, well founded no doubt, that the Faculty will continue to elect as their Dean men of eminence and integrity, but his nomination of the Dean of Faculty can leave him with little confidence that any particular Dean will make any particular selection within the class. One can think of other illustrations where the
possibility of the testator's own personal views being carried out was negligible and where even his confidence in the body which was to elect his ex officio trustee might be misplaced. One may well ask, Why should a testator who does not desire to make a selection from a class himself, either because he has not the time or the knowledge or the confidence in his own judgment, not be content to leave the selection to someone appointed by the Supreme Court of the country to which he belongs?The plain fact of the matter is that the designation of the class is the important thing. By designating a class in preference to making a personal selection of particular members of that class, what the testator in effect says is, I am prepared to favour every member of that class. In these circumstances the selection of any particular member out of the class is not essential to the testamentary act. It becomes an administrative act. During the debate I was impressed by the view that it might be possible to say that there was a fundamental difference in principle between the function of the alienus and the function of the administrator of the will. It does not matter that the two functions may be performed by different persons or by the same person according to the testator's directions. Is it possible to say that the function of the alienus is in essence testamentary while the function of the administrator is not? I have come to the view that it is not possible to draw such a distinction. Both do what the testator tells them to do, and I see no satisfactory line of demarcation between the power to select members of a designated class and the exercise of the infinite variety of discretionary powers which may alter the character of the enjoyment by a beneficiary of the testator's bounty. Unless a testator makes it clear that such discretionary powers are to be exercised only by a persona delecta, there is no doubt that the modern tendency is to permit all administrators, original, assumed or appointed by the Court, to exercise them.
Accordingly, the vital point in the present case is that the testator has designated a class. Any member of that class is entitled to benefit simply by reason of his membership. This testatrix has appointed noalienus to select the members of the class. Nor has she appointed anybody to administer her will. For the latter, she is entitled to rely on the law to fill the gap. Why should she not rely on the law to appoint the alienus? An alienus appointed by the law can follow but one course, select certain members of the class. Each member selected has already been named as a potential beneficiary. Had the testatrix wished to rely on the views of a friend who knew her mind or on the views of a person whose judgment she respected, she could have said so. By not saying anything she says that she has no personal predilections for any particular member of the class and that she feels the same to all. She might have appointed apersona delecta as alienus; she has not done so. I see no reason why her failure to do so should destroy her bequest.
That being the situation as it appears to me...
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