M'Lean v Henderson's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 24 February 1880 |
| Docket Number | No. 113. |
| Date | 24 February 1880 |
| Court | Court of Session |
Lord Adam. I., Lord Ormidale, Lord Gifford, Lord Justice-Clerk.
Succession—Legacy—Uncertainty—Charitable Bequest—Promotion of Phrenology.—
A father in his trust-disposition provided that if his only son should die unmarried he should have power to dispose ‘by testament of £5000 sterling of the trust-estate, to be payable at the first term of Whitsunday or Martinmas after his death.’ The son died unmarried, leaving a trust-disposition in which he conveyed his whole estates to trustees for the purposes therein set forth. The direction as to residue was as follows:—‘And lastly, the whole residue of my means and estate, and of the said sum of £5000 of my father's trust-estate, shall…. be applied by my said trustees in whatever manner they may judge best for the advancement and diffusion of the science of phrenology, and the practical application thereof in particular, giving hereby and committing to my said trustees the most full and unlimited power to manage and dispose of the said residue in whatever manner shall appear to them best suited to promote the ends in view.’ Certain well-known phrenologists were nominated trustees, to whom he gave powers to assume new trustees for the general management of the funds, and directions to assume as special trustees for the application of the residue ‘enlightened phrenologists,’ with powers to appoint like-minded successors ad perpetuum. The trustees obtained payment of the funds, and administered the residue according to their view of the object of the truster for upwards of forty-seven years, when the next of kin of the truster raised an action for declarator (1) that the power given to the son in the father's trust-disposition had not been duly exercised by the son's trust-disposition; (2) that the bequest of the residue was invalid and ineffectual, its object being vague, uncertain, and inextricable; and therefore (3) that the residue belonged to the next of kin. Held that the son by his trust-settlement effectually exercised the power given him by his father, and that the bequest of the residue was not null from the vagueness or uncertainty of its object.
Opinion (per Lord Justice-Clerk) that the bequest could only be maintained as it fell within the category of charitable bequests.
Alexander Henderson, of Eildon Hall and Warriston, banker in Edinburgh, died on 18th February 1828, leaving a trust-disposition and settlement, whereby, inter alia, he bequeathed to his only son, William Ramsay Henderson, an annuity of £500 yearly as an alimentary provision. He also provided as follows:—‘And farther, should my son die unmarried and without issue, he shall have power to dispose by testament to the extent of £5000 sterling, to be payable at the first term of Whitsunday or Martinmas after his death, with interest thereafter till payment.’
Mr Henderson was survived by his son and two daughters. The son, William Ramsay Henderson, died unmarried and without issue on 29th May 1832, leaving a trust-disposition and settlement, dated 27th May 1829, and two relative codicils. By his trust-deed W. R. Henderson conveyed his whole means and estate to James L'Amy, advocate, George Combe, W.S., and Andrew Combe, M.D., as trustees, and particularly ‘the sum of £5000 sterling, part of the trust-estate of my said deceased father, to which extent it is declared, by his trust-disposition and settlement, dated the 28th day of December 1827, and registered in the Books of Council and Session the 26th day of February 1828, that I shall have power to dispose by testament, which sum is declared to be payable at the first term of Whitsunday or Martinmas after my death, and which I hereby desire to be paid to my said trustees accordingly.’ After providing for payment of debts, and various legacies and annuities the deed proceeded:—‘And lastly, the whole residue of my means and estate, and of the said sum of £5000 of my father's trust-estate, shall, after answering the purposes above-written, be applied by my said trustees in whatever manner they may judge best for the advancement and diffusion of the science of phrenology, and the practical application thereof in particular; giving hereby and committing to my said trustees the most full and unlimited power to manage and dispose of the said residue in whatever manner shall appear to them best suited to promote the ends in view; declaring that if I had less confidence in my trustees I would make it imperative on them to print and publish one or more editions of an “Essay on the Constitution of Man, considered in relation to external objects, by George Combe,” in a cheap form, so as to be easily purchased by the more intelligent individuals of the poorer classes and mechanics' institutions, &c., but that I consider it better only to request their particular attention to this suggestion, and to leave them quite at liberty to act as circumstances may seem to them to render expedient, seeing that the state of the country and things impossible to foresee may make what would be of unquestionable advantage now not advisable at some future period of time; but if my decease shall happen before any material change affecting this last subject I request them to act agreeably to my suggestion.’ Power was given to the original trustees to assume from time to time such other persons as they should think fit as trustees along with them for the management of the part of the trust affairs relating to payment of debts, legacies, &c., but it was declared that the trustees so assumed were to have no concern ‘with the application of the residue nor the measures to be taken by the original trustees and those to be assumed by them as aftermentioned for the advancement and diffusion of phrenology and its applications.’;With regard to the administration of this part of the trust the original trustees were taken bound to nominate, by a writing under their hands, two or more persons who should be, in their estimation,‘enlightened phrenologists,’as their successors in administering the residuary funds,—the persons so nominated to have the same powers as the original trustees in that respect, and with power to the trustees, original and assumed, and to those to be nominated as successors, again to nominate successors of the same description, and so on ad perpetuum,—‘declaring that the nomination of successors shall always become imperative whenever the number of trustees shall be reduced to three.’ Then followed this declaration:—‘And I think it proper here to declare that I dispose of the residue of my property in the above manner, not from my being carried away by a transient fit of enthusiasm, but from a deliberate, calm, and deep-rooted conviction that nothing whatever hitherto known can operate so powerfully to the improvement and happiness of mankind as the knowledge and practical adoption of the principles disclosed by phrenology, and particularly of those which are developed in the “Essay on the Constitution of Man” abovementioned.’
The trustees duly accepted office, and proceeded to realise the trust-estate and administer it. Owing to the difficulty experienced in winding up Mr A. Henderson's estate payment of the £5000 was not made until 1835. Eventually the free trust-estate in the hands of the trustees, subject, however, to many annuities, was £6202,15s.
From the time the trust-estate was realised the trustees continued to administer it in accordance with the provisions in the trust-deed. At first the free income available for the residuary purposes was very small, but as annuities fell in the annual sum available for expenditure became larger. Among other objects on which the trust-funds were expended was the erection and maintenance of a building for the reception of the collection of skulls of the Edinburgh Phrenological Society, where the collection was open for examination by the public. The original trustees, on 29th August 1832, assumed two additional trustees as co-trustees and successors in the application of the residuary funds. On 1st March 1854 the trustees, original and assumed, having diminished to two in number, these remaining two trustees nominated and appointed four additional trustees, and from that time the number of the trustees was never below three in number.
As at 10th January 1879 the capital of the trust was estimated at £9785, and the income, exclusive of the annual value of the museum buildings, £287, 11s., about £120 of which was still required to pay annuities bequeathed in the trust-deed.
On 23d July 1879 Miss Ruth M'Lean and Mr John Henderson Begg, the only surviving children of the deceased elder daughter of Mr Alexander Henderson of Eildon Hall, and his sole representatives, raised an action against the then trustees of William Ramsay Henderson, in which they concluded for declarator ‘(1) that the said William Ramsay Henderson did not, by the said trust-disposition and settlement, and codicils thereto, validly and effectually exercise the power conferred on him by the trust-deed and settlement of his father, Alexander Henderson, Esq., of Eildon Hall and Warriston, banker in Edinburgh, dated 28th December 1827, and, with codicils thereto, registered in the Books of Council and Session on 26th February 1828, to dispose by testament...
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