Mackinnon's Trustees v Mackinnon
| Jurisdiction | Scotland |
| Judgment Date | 27 May 1909 |
| Docket Number | No. 158. |
| Date | 27 May 1909 |
| Court | Court of Session |
Ld. Johnston, Lord President, Lord Pearson, Lord Dundas.
charitable and Educational Bequests and TrustsUncertaintyCharitable or philanthropic institutions.
A testator directed that the residue of his estate should be paid to such charitable or philanthropic institutions, one or more, in Glasgow or the West of Scotland as my trustees may select as in their opinion the most deserving.
Held (rev. judgment of Lord Johnston) that the bequest was to be construed as a bequest in favour of charitable institutions, and was not void from uncertainty.
Hay's Trustees v. Baillie, 1908, S. C. 1224, and Paterson's Trustees v. Paterson, supra, p. 485, followed.
In re MacduffELR, [1896] 2 Ch. 451, commented on.
Charles Mackinnon, who resided at 21 Roselea Drive, Dennistoun, Glasgow, died on 13th October 1898, survived by his wife, Mrs Jane Maltman or Mackinnon, who died on 8th February 1905. By trust-disposition and settlement, dated 29th October 1891, and codicil thereto, dated 15th January 1895, Charles Mackinnon conveyed his whole estate to Robert Baird Paterson and others, as trustees for the purposes therein set forth. The eighth purpose of the said codicil was as follows:I direct that the residue of my means and estate shall be paid to such charitable or philanthropic institutions, one or more, in Glasgow or the west of Scotland as my trustees may select as in their opinion the most deserving,and that in such proportions in the case of their dividing it as they, in their sole discretion,may consider best.
A doubt having been expressed as to whether the bequest of residue was not void from uncertainty, the trustees, on 13th February 1908, brought an action of multiplepoinding, to which the heirs ab intestato of the testator were called as defenders, for the purpose of determining the disposal of the residue of the estate, which formed the fund in medio.
A claim was lodged for the trustees (the pursuers and real raisers) in which they maintained that the residuary bequest was valid and should receive effect, and therefore claimed to be ranked and preferred to the whole fund in medio, in order that it might be administered by them.
A claim was also lodged for the next of kin of the testator, who maintained that the bequest of the residue was void from vagueness and uncertainty, and that the residue fell to be distributed as intestate succession amongst the testator's heirs in mobilibus.
On 29th October 1908 the Lord Ordinary (Johnston) pronounced an interlocutor sustaining the claim for the next of kin, and ranking and preferring them on the fund in medio.*
The trustees reclaimed, and the case was heard before the First Division on 27th May 1909.
Argued for the reclaimers;This case was ruled by the decision in Hay's Trustees v. Baillie.1 In the expression charitable or philanthropic the use of or was conjunctive and not disjunctive. The use of the two words as qualifying institutions bore out the view that they were synonymous, or at any rate exegetical. The circumscribing line by which the testator defined the class of institutions which he wished to benefit was sufficiently distinct.2There was nothing in this case to distinguish it from Hay's Trustees v. Baillie,1 or from the more recent case of Paterson's Trustees v. Paterson,3 which followed Hay's Trustees.1 In any case all such bequests as this were entitled to a benignant construction.4
Argued for the respondents;The bequest was void from uncertainty. The words charitable and philanthropic were not
synonymous, philanthropic having a much wider and more indefinite meaning than charitable. The use of the word or was disjunctive, and took the bequest out of the category of bequests to purely charitable institutions, and thus rendered the bequest void. There might be philanthropic institutions which were not charitable.1
Lord President.The point here raised arises upon the will of a Mr Mackinnon, the last purpose of which was in the following words:I direct that the residue of my means and estate shall be paid to such charitable or philanthropic institutions, one or more, in Glasgow or the west of Scotland, as my trustees may select as in their opinion the most deserving, and that in such proportions in the case of their dividing it as they in their sole discretion may consider best. The point is whether that is a good bequest, or whether it is void from uncertainty. This question is one that
in various forms has recently been very frequently before the Court, and I do not think it is at all necessary to say anything on the general law of the subject; and, in particular,the cases of Hay's Trustees1 and Paterson's Trustees2 are both very recent, following as they did,upon the case of Murdoch3 in the House of Lords. Now, the question always comes back to be whether, in the words that Lord Kinnear used in the case of Hay's Trustees,1the circumscribing line by which...
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