Grimond (or Macintyre) v Grimond
| Jurisdiction | Scotland |
| Judgment Date | 16 January 1904 |
| Docket Number | No. 47. |
| Date | 16 January 1904 |
| Court | Court of Session (Inner House - Second Division) |
LORD LOW. The deceased Alexander Dick Grimond directed his testamentary trustees (to whom he conveyed his whole means and estate) to “divide, pay, and convey” one third of the residue of his estate “to and among such charitable or religious institutions and societies” as he might direct, and in such proportions to each or any as he might fix, by any writing, whether holograph or tested or under his hand, and failing thereof, to and among “such charitable or religious institutions and societies” as his trustees might select, and in such proportions to each or any as they might fix.
Mr. Grimond left no writing in regard to the institutions and societies which he desired to benefit, and the question raised in this case is whether the direction to his trustees to apply the fund to such charitable or religious institutions and societies as they might select constitutes a valid testamentary direction to which effect can be given.
It is not disputed that the words “charitable or religious institutions and societies” must be read disjunctively, and that it would be in the power of the trustees to apply the fund wholly to religious institutions and societies, and the question is whether that is not a description of the object of the bequest which is too vague and general to be the subject of a valid bequest.
It is necessary to determine in the first place whether a bequest to religious institutions and societies is a bequest for charitable purposes, because if it is so, it is admitted that it would be effectual. Apparently in England such a bequest would be regarded as falling within the category of “charitable,” but I do not think that the English decisions as to what constitutes a charitable bequest can be safely appealed to, because the Courts of that country have, following the analogy of certain old statutes, given a much wider and more artificial significance to the word charity than has ever been adopted in Scotland. In the latter country, although I do not think that the term “charitable bequest” would now be limited to a bequest of an eleemosynary nature, it seems to me that it cannot be extended so as to embrace a bequest only for religious purposes — especially where, as here, the truster has named religious purposes as being in contradistinction to charitable purposes.
If therefore the bequest is not a charitable bequest, the next question is whether — as the pursuers contend — it is too vague to receive effect.
That question appears to me to be one of great difficulty. There is no precise rule by which such a question can be solved, each case falling to be determined upon a reasonable construction of the language used. Perhaps the nearest approach to a rule of general application is that laid down by Lord Lyndhurst in the case of Crichton v. Grierson.F2 He there said that by the law of Scotland it was “competent for the disposer to point out particular classes of persons and objects which are intended to be the object of his favour, and then to leave it to an individual, or a body of individuals, after his death, to select out of those classes the particular individuals or the particular objects to whom the bounty of the testator shall be applied.”
Now in this case the truster has pointed out a particular class of objects — religious institutions and societies — among which his trustees may make a selection. The pursuers, however, argued that although in one sense a class of objects was pointed out, the description was so wide and indefinite that it could not be made effectual, seeing that it embraced the whole world and every religion professed by mankind.
I agree that there is no local limit within which the trustees must exercise their discretion, but I cannot assent to the view that all religions are embraced. I think that it is extravagant to say that the trustees would be entitled to apply the fund to such an object as the endowment of a Mahomedan mosque or a Hindoo temple. It seems to me that, considering that the truster was a Scottish gentleman who is not said to have held any peculiar views upon matters of religion, the word “religious” cannot reasonably be read as including anything beyond (at all events) the Christian religion. I imagine that it is certain that the truster did not intend his trustees to go outside of the Christian religion, and it seems to me that in this country that is the natural meaning to attach to the word “religious” in the absence of any more precise definition. There is but little authority on the subject, but I observe that in Attorney-General v. PearsonF3 Lord Eldon L.C. said: “I take it that if land, or money, were given … for the purpose of building a church, or a house, or otherwise, for the maintaining and propagating the worship of God, and if there were nothing more precise in the case, this Court would execute such a trust by making it a provision for maintaining and propagating the Established religion of the country.”
If then I am right in thinking that the word “religious” must be construed as referring to the Christian religion, I am not prepared to say that a direction to trustees to apply a fund to such institutions and societies of that religion as they might select is so indefinite as to be inextricable and incapable of being carried out.
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