M'Phee's Trustees v M'Phee
| Jurisdiction | Scotland |
| Judgment Date | 07 November 1911 |
| Docket Number | No. 12. |
| Date | 07 November 1911 |
| Court | Court of Session |
Lord Dundas, Lord Mackenzie, Lord Kinnear.
Charitable and Educational Bequests and TrustsUncertaintyReligious and charitable institutions in Glasgow and neighbourhood.
A testator directed his trustees to pay and divide a sum of 250 among such religious and charitable institutions in Glasgow and neighbourhood as they may select, and in such proportions as they may think proper.
Held that the bequest was to be construed as a bequest to institutions in the locality of which it could be predicated that they were both religious and charitable, and that it was not void from uncertainty.
The late Hugh M'Phee, Glasgow, left a trust-disposition and settlement which contained, inter alia, the following clause:I direct and instruct my trustees to pay and divide the sum of 250 sterling, free of legacy-duty, among such religious and charitable institutions in Glasgow and neighbourhood as they may select, and in such proportions as they may think proper.
A question having arisen as to the validity of the bequest, a special case was presented for the opinion of the Court; to which the trustees of the testator were the first parties and the residuary legatees under the settlement the second parties.
The case contained the following statement of the contentions of the parties:(7) The first parties maintain that they are entitled to select any institution or institutions in Glasgow and neighbourhood, each of which has for its object works of a combined religious and charitable character, and to pay over to such institution or institutions the said legacy of 250 in such proportions as they may think fit. (8) The second parties contend that the directions as to paying and dividing the said sum of 250 are too vague and indefinite to receive effect, and that the legacy is void in respect that the beneficiaries sought to be benefited cannot with reasonable certainty be ascertained. They accordingly maintain that the said sum becomes part of the residue of the testator's estate, and falls to be divided among them as residuary legatees.
The questions of law were:(1) Are the testator's directions as to paying and dividing the foresaid sum of 250 sterling sufficiently definite to receive effect, and are the first parties entitled to pay and divide the same in terms of said directions? or (2) Does the said sum of 250 sterling become part of the residue of the testator's estate, and fall to be divided among the second parties as residuary legatees?
The case was heard before the Extra Division (consisting of Lord Kinnear, Lord Dundas, and Lord Mackenzie) on 7th November 1911.
Argued for the first parties;It was settled beyond dispute that a bequest to charitable institutions or for charitable purposes was definite and good1; it was also equally well settled that a bequest to religious institutions or for religious purposes was indefinite and bad; and it had further been decided that where the expression was religious or charitable the bequest was bad,2 as in such a case the whole bequest might be applied to the religious,i.e., the indefinite, purposes. The expression religious and charitable was, however, in quite a different position. This had been clearly recognised in many of the cases.3 The word and fell to be read, as it was natural to read it, conjunctively and not disjunctively, and accordingly the definiteness which attached to the word charitable was sufficient to give a definite significance to the whole expression charitable and religious. The case of M'Conochie's Trustees v. M'Conochie,4 which appeared to be a decision somewhat adverse to this contention, was distinguishable from the present, as the consideration which in that case weighed most with the Court was the vagueness of the expression purposes as compared with the expression institutions. Further, the...
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