Lindsay's Trustees v Lindsay
| Jurisdiction | Scotland |
| Judgment Date | 22 October 1937 |
| Date | 22 October 1937 |
| Docket Number | No. 3. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Charitable TrustConstitutionWhether object has failedBequest to persons described as named in separate declaration of trust as trustees to carry on hospitalDeclaration of trust prepared but not executedDeath of testator before execution of declaration of trustAppointment by Court of trustees to receive bequest.
A testator, by his settlement, directed his trustees to make over the residue of his estate "to the trustees of the John Lindsay Memorial Hospital, Dalbeattie whether that Hospital be then erected or not," to be held as an endowment for the hospital "when erected," and to be applied in maintaining it "in accordance with the terms of the Declaration of Trust executed by them of even date with my execution of these presents." The hospital trustees were not named in the settlement. A declaration of trust had been prepared in accordance with the testator's instructions for execution by the persons named therein. It narrated that the testator had transferred to the signatories a sum of money for the erection of a hospital in Dalbeattie, and it contained a scheme for the management of the hospital. The testator died very shortly after the execution of his settlement, and before the execution of the declaration of trust or the transfer of the sum for the erection of the hospital.
The testator's trustees presented a petition craving the Court to settle a scheme for the administration of the bequest. The next of kin maintained that the bequest had failed, in respect that there were no hospital trustees in existence at the date of the testator's death.
The Court held that the bequest had not failed, the testator's intention to endow a hospital at Dalbeattie being clearly expressed; andappointed the persons suggested in the draft scheme as trustees to receive the bequest.
Quoad ultra the Court refused the prayer of the petition for the settlement of a scheme, in respect that it would be the duty of the trustees thus appointed to present a scheme if such should be necessary.
The late Archibald Macneil Lindsay, merchant, Dalbeattie, died on 4th February 1937. He left a trust-disposition and settlement which contained, inter alia, the following provisions:"Lastly I direct my Trustees after implementing or providing for the implement of the foregoing Trust purposes to make over the whole rest residue and remainder of my means and estate to the Trustees of the John Lindsay Memorial Hospital, Dalbeattie (known as the Lindsay Memorial Trustees) whether that Hospital be then erected or not said Residue to be held by said last-mentioned Trustees as an Endowment for said Hospital when erected and the annual Income and produce from such Endowment shall be applied by them towards the cost of maintaining and running said Hospital in such way and manner as said last-mentioned Trustees may consider proper and in accordance with the terms of the Declaration of Trust executed by them of even date with my execution of these presents and of the constitution which they are authorised to frame under the Eighth Article of said Declaration of Trust."
The trustees under Mr Lindsay's settlement presented a petition craving the Court to settle a scheme for the administration of the bequest. The petition set forth, inter alia:"(3) For some years before his death the testator had been considering the disposal of his estate in consultation with his law agent, John Edwin Milligan, solicitor, Dalbeattie, and his medical attendant, the petitioner, William David Gillespie. He desired to benefit the town and district in which he had spent his life, and had decided to devote the greater part of his estate to the building, equipment and endowment of a cottage hospital there. In order to carry out this project he proposed to set up a body of trustees to be known as the Lindsay Memorial Trustees and to transfer to them forthwith 3236, 16s. 9d. of 3 per cent War Stock and 850 of 4 per cent Funding Loan to be used for the building and equipment of the proposed hospital. He further proposed by his trust-disposition and settlement to direct his testamentary trustees after fulfilment of the other trust purposes to convey the whole residue of his estate to the Lindsay Memorial Trustees to be held by them as an endowment fund for the said hospital. The details of the scheme were fully considered, and it was intended that they should be embodied in a declaration of trust to be executed by the Lindsay Memorial Trustees upon the transfer to them of the aforementioned funds. The persons whom the testator intended to appoint as Lindsay Memorial Trustees were the petitioners, Walter Clark and William David Gillespie, and Mrs Mary Craig Grierson or Newall, Broomlands, Dalbeattie, as President of Dalbeattie and District Nursing Association, and John Dickson, Craignair Street, Dalbeattie, as Provost of...
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