Reid's Trustees v Cattanach's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1929 |
| Date | 28 June 1929 |
| Docket Number | No. 82. |
| Court | Court of Session |
Lord Mackay, Lord Ormidale, Lord Hunter, Lord Anderson, Lord Justice-Clerk (Alness).
SuccessionValidity of testamentUncertaintyCharitable Trusts and BequestsBequest for charitable educational or benevolent societies or public institutions in Scotland.
A testator directed his trustees, upon the expiry of a liferent of the residue of his estate, to pay appropriate and distribute the free residue and remainder of my said estate and effects at such times and in such proportions as my Trustees may think fit to and among such poor persons in Eskdale or such Charitable Educational or Benevolent Societies or public institutions in Scotland as my Trustees shall select.
Held (1) that the words public institutions in Scotland were to be read as indicative of a separate class; (2) (diss. the Lord Justice-Clerk) that they were too indefinite to receive effect; and accordingly that the whole bequest was void from uncertainty.
Alexander Reid, manufacturer in Langholm, died on 20th March 1874, leaving a trust-disposition and settlement, dated 25th October 1873. The testator was survived by one child, a son, David Udale Reid, who died on 17th March 1877 without issue, but survived by his widow, Mrs Emily Parkin Gray or Reid. David Udale Reid left his whole property to his wife, who subsequently married James Gibson Cattanach, Edinburgh, and died on 25th March 1928.
By his settlement the testator directed his trustees to hold the residue of his estate in trust for his son, David Udale Reid, and his spouse in conjunct liferent, and the issue of the marriage in fee. He gave his trustees a power, which was not in fact exercised, to pay over the residue or a part thereof to his son. The testator then directed his trustees (lastly) if the residue was not made over to his son or his son's children to pay appropriate and distribute the free residue and remainder of my said estate and effects at such times and in such proportions as my Trustees may think fit to and among such poor persons in Eskdale or such Charitable Educational or Benevolent Societies or public institutions in Scotland as my Trustees shall select, With power to my Trustees to invest such sum or sums as they think proper in establishing a Bursary or Bursaries for young men natives of Eskdale (comprehending the parishes of Eskdalemuir, Westerkirk, Ewes, Langholm and Canobie) who may be or may be about to become matriculated students of any of the Universities of Scotland, Declaring always that all arrangements regarding said Bursary or Bursaries and conditions to be attached thereto shall be made and fixed as my Trustees in their discretion may think proper Declaring also that no person or institution shall have right to interfere with or call in question the disposal by my Trustees of any portion of the said free residue of my estate on the ground that a person who or society or institution which may have been selected does not fall under the description before given it being my wish and intention that my Trustees in whose discretion I have full confidence shall have full and uncontrolled power to dispose of said residue and remainder of my estate as they in their discretion may think proper.
Mrs Cattanach enjoyed the liferent of the residue until her death, when questions arose as to the validity of the directions contained in the last purpose of the settlement. The trustees brought an action of multiplepoinding and exoneration, in which claims were lodged by the trustees themselves and by Mrs Cattanach's testamentary trustees. The fund in medio was the residue of the estate, less certain deductions.
Alexander Reid's trustees maintained that the bequest contained in the last purpose was a valid bequest, and that they were bound to administer the fund in medio in terms thereof. They claimed to be ranked and preferred as trustees to the fund in medio.
Mrs Cattanach's trustees maintained that the directions given by the testator for the disposal of the residue of his estate were void from uncertainty, that on the death of the testator the residue vested in his son, David Udale Reid, that it was carried by the will of David Udale Reid to his wife, and was conveyed to these claimants by Mrs Cattanach's trust-disposition and settlement. They claimed to be ranked and preferred to the fund in medio.
The case was heard in the Procedure Roll, and on 5th April 1929 the Lord Ordinary (Mackay) found that the directions given by the testator under the last provision of his settlement were void from uncertainty, and ranked and preferred the claimants, Mrs Cattanach's trustees, in terms of their claim.
Lord Mackay'sopinion.[After dealing with another question in the case, and quoting the last part of the settlement]The gift obviously takes the form of a direction to trustees to appropriate and distribute residue, not at one time, but at various times and in various proportions, as the trustees may think fit. The truster therefore looked to a prolonged administration of his trust and a distribution at periods in the future. The other purposes of his trust, as construed in the special case Reid's Trustees v. ReidUNK, (1879) 6 R. 916, meant that the beginning of this period of administration might be postponed, as it has been postponed, for many years. Beginning at that postponed period, the trustees were, it is said by those who attack the gift, given power to select among six different classes or objects, namely (a) such poor persons in Eskdale as the trustees might select; (b) such charitable societies, (c) such educational societies, (d) such benevolent societies, (e) such public institutions in Scotland as his trustees should select; and (f) for a bursary or bursaries for young men, natives of Eskdale, who may be or may be about to become matriculated students of any of the universities of Scotland. The attack is certainly a formidable one, and I have come to think it must prevail. It does not follow, however, that I assent to all and every branch of the attack as directed. It was not endeavoured to be said, that the gift to poor persons in Eskdale, if it stood alone, was not good against challenge, because it was admitted to be essentially charitable. It was, of course, not said that a gift to charitable societies in Scotland at the selection of the trustees would be bad, but it was said that educational societies,benevolent societies,public institutions in Scotland, stood out separate as disjunctive objects of the bequest, and that, as such, each was bad in itself, thus vitiating the whole. [His Lordship referred to the direction to establish bursaries and to the clause giving the trustees full and uncontrolled power to dispose of residue, and continued]
In order, in part at least, to meet this formidable attack, one view of the phrase commencing, such charitable educational, &c., was put forward to which I feel I ought to give effect, looking to the Court's undoubted disposition so to construe gifts of this general nature as to make them effective if possible. It was proposed that one should read that part of the bequest thus,Public institutions in Scotland are not a severable or disjunctive subject of gift, and the words societies or public institutions should be read as, bracketed together, indicating a contrast in the truster's mind between voluntary societies for certain purposes and institutions of a public origin or under public management for similar purposes. In that view the word public was not contrasted with charitable or benevolent, and did not describe the aims of the institutions. It was a word qualifying the public origin or control of institutions, as contrasted with the non-public origin or control of societies. This bracketed phrase would thus be qualified in turn by the adjectivescharitable societies or public institutions,educational societies or public institutions, and benevolent societies or public institutions. Although it may be that one is slightly straining the function of construction, I am prepared to adopt this suggestion. But then I think it became matter of the most explicit admission that, even if this were done, the remaining branches of the gift are disjunctive in quality. That is to say, it was not sought to read in this gift the word or as meaning societies or public institutions which are at once charitable, educational, and benevolent. It was admitted that the categories as increased in this wise from six to eight are proper disjunctive categories. The question of the validity of the whole gift accordingly appears to me to necessitate the disposal of one or both of two questions which may still be regarded as not conclusively established in Scots law, namely (1) whether a gift for benevolent societies and institutions without any local limitation other than Scotland is too vague, and (2) whether a gift to educational societies and institutions, without any other local limitation, is too vague.
These questions, or at least the educational part of them, were before the First Division recently in the case of Harper's Trustees v. Jacobs, supra, p. 345. [His Lordship expressed the view that the decision in Harper's Trustees had no direct bearing on the case before him, and continued]
Turning then to the old and well-worn line of authorities, it appears to me that ever since Morice v. The Bishop of Durham, (1804) 9 Ves. 399, at p. 405, and other early cases, the guiding rule is this, that a truster may not leave the making up of his own will to other persons, but, secondly, that a limited power of selection of the objects may be left as executive powers to his executors, provided the main purpose is sufficiently definitely indicated. Now, the whole of the emerging law seems to me to be largely nothing but an application of these principles. The principles are not confined to charitable gifts, and the distinction of good and bad may occur within the general...
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