Renouf's Trustees v Haining
| Jurisdiction | Scotland |
| Judgment Date | 31 May 1919 |
| Date | 31 May 1919 |
| Docket Number | No. 59. |
| Court | Court of Session |
Lord Dundas, Lord Salvesen, Lord Guthrie.
SuccessionTrustBequestUncertaintyPayment of salaries of native missionaries to preach gospel among heathenCharitable and educational bequests and trusts.
A testator by his holograph trust-disposition and settlement provided that his trustees were to pay out of the income of his estate the salaries of two native missionaries chosen of them, for preaching the Gospel of Jesus Christ my Lord among the heathen, and that, on the winding-up of his estate, they were to make provision for these salaries to be continued to the societies they represent. In later clauses he referred to the missionaries as Christian native preachers, and to his scheme as one for preaching the Gospel of Jesus Christ as already named for foreign lands. No mention was made of the amount of the salaries to be paid.
Held (diss. Lord Salvesen) that the bequesteven on the assumption that it was not a charitable bequestwas not void from uncertainty; its objects, the method of its execution, the persons to be benefited, and the sphere of its operation, being all sufficiently defined by the testator.
SuccessionDestinationSpecial destinationEffect of general settlement on special destinations.
A testator died leaving a trust-disposition and settlement by which he disposed of his whole means and estate, express reference being made to a superiority and certain bonds and dispositions in security. The superiority had been purchased, and the sums contained in the bonds furnished, out of funds belonging to the testator's wife, and the destinations, inserted on her instructions, were, in the case of the superiority, to her husband and her son by a former marriage jointly, and to the survivor of them, and his heirs, and, in the case of one of the bonds, to the husband and the son jointly, and the survivor of them, and their or his executors or assignees whomsoever, and, in the case of the other bonds, to the husband and the son or the survivor of them, and the executors of such survivor, and to their or his assignees whomsoever. Admittedly under the destinations one-half of the superiority and one-half of the sums contained in the bonds belonged to the son, who survived the testator. With regard to the other halves, held that the testator had no power to evacuate the destinations by his settlement; and that, accordingly, these halves passed to the son as the survivor in the destinations.
On 15th November 1918 a special case was presented for the determination of certain questions arising out of the general trust-disposition and settlement of Frederick Mansell Renouf, Hawick, who died on 24th September 1915, and who, it was admitted, was a domiciled Scotsman and a member of the Wesleyan Methodist Church.
By his holograph trust-disposition and settlement the testator conveyed and made over to his trustees all my means and estate moveable or otherwise of every kind and description wheresoever situated and belonging to me at my death or after my decease; and the directions as to the disposal of the estate, which provided for the payment of legacies, liferents, and the final division of the estate among beneficiaries, contained the following purposes, 2nd. I wish my Trustees to pay out of the income of my estate the salaries of two native missionaries chosen of them, for preaching the Gospel of Jesus Christ my Lord among the heathen: Also that on the winding of my estate that the Trustees make provision for these salaries to be continued to the societies they represent.5th. If any of the legatees should fall in drink or not live a respectibly life, which my Trustees disapprove of, I give my Trustees the power to withdraw the share from such a legatee and put the money so withdrawn to the increase the amount already given to preach the Gospel of Jesus Christ by Christian native preachers.7th. After my estate is realised, should any of my legatees be abroad, I direct my Trustees to advertised for two weeks in the local paper of the town they are supposed to be living in, and should no inquiry be made within two months, I give my Trustees power to use the said share or shares for preaching the Gospel of Jesus Christ as already named for foreign lands.
At the death of the testator certain documents were found, some in the custody of James Halliday Haining, the son of the testator's wife Mrs Renouf by a former marriage, others in the custody of a firm of law-agents who acted for Mr and Mrs Renouf and also for Mr Haining. These documents (set forth in article 8 of the case) consisted of (1) Disposition of Salthall superiority by Mr John Wilson's trustees, recorded 6th December 1897, in favour of Frederick Mansell Renouf and James Halliday Haining, jointly, and to the survivor of them, and his heirs. (2) Bond and disposition in security over heritable subjects payable to Frederick Mansell Renouf and James Halliday Haining, or the survivor of them, and the executors of such survivor, and to their or his assignees whomsoever.(3) and (4) Two other heritable bonds, the destinations in which were in the same terms as in No. (2). (5) Bond and disposition in security over heritable subjects payable to Frederick Mansell Renouf and James Halliday Haining, jointly, and the survivor of them, and their or his executors or assignees whomsoever.
In all of these documents it was stated that the money paid or invested was so paid or invested by the testator and Mr Haining. It was admitted however that, in point of fact, the money in each case was paid wholly by Mrs Renouf out of her own funds, and the destinations in the deeds were inserted on her instructions; but Mr Haining arranged with her to refund, and did refund, to her half of the price of Salthall superiority (No. 1). Mrs Renouf died on 24th October 1911, leaving a disposition and settlement, dated 25th October 1899, by which she bequeathed certain subjects to her son Mr Haining, and disponed her whole other means and estate to her husband, and appointed him and her son her executors. The disposition and settlement contained no reference to the investments and subjects mentioned above. In all cases in which any part of the funds previously invested as above was repaid, the money was paid to the testator and Mr Haining, and they granted a receipt. In the directions which the testator gave to the trustees as to the disposal of his estate he expressly dealt with, as forming part of the estate, this right of superiority and three out of the four bonds and dispositions in security.
The testator's trustees were the first parties to the case; his stepson James Halliday Haining was the second party; a brother and sister of the testator, who were beneficiaries under his settlement, were the third parties; another brother was the fourth party; and certain nephews and nieces, who were residuary legatees, were the fifth and sixth parties.
Two questions, inter alia, arose upon the testator's death, the first of which was as to whether the provision for the support of the native missionaries was or was not void from uncertainty. On this question the trustees maintained that the bequest was not void; while the contrary was maintained by the third, fifth, and sixth parties.
The second question was as to the effect of the testator's general disposition and settlement upon the destinations in the disposition and the bonds. With regard to this question the case stated;
The parties are agreed that there is no evidence bearing on the questions submitted as to all the said investments, except the terms of the said destinations, the facts herein set forth, and the testator's said general disposition and settlement. The parties are also agreed that one-half of the sums contained in the said investments belongs to the second party, but a question has arisen whether the remaining half has passed under the testator's said general disposition and settlement to the first parties, or whether it now belongs to the second party in terms of the said destinations. The first parties and the third parties maintained that this remaining half of these investments was estate of the deceased and fell under the settlement; the second party maintained that it passed to him by virtue of the destinations, and was not carried by the settlement.
On these two matters the following, questions of law were submitted for the opinion and judgment of the Court;(1) Is the provision in regard to the appointment of two native missionaries for preaching the Gospel of Jesus Christ my Lord among the heathen void from uncertainty? (3) Has the one-half, which belonged to the testator, of the Salthall superiority and of the respective sums contained in the bonds and dispositions in security Nos. 2 to 5 (inclusive), mentioned in article 8, or any of them, passed (a) to the first parties in terms of the testator's said general disposition and settlement? or, (b) to the second party in terms of the destinations in the disposition of the said superiority and in the said bonds and dispositions in security?
The case was heard before the Second Division (without the Lord Justice-Clerk) on 14th, 16th, and 17th May 1919.
(1) Upon the first question of law.
Argued for the first parties;The bequest was not void from uncertainty. It was a charitable bequest and, as such, it was entitled to the favourable consideration which the Court gave to such bequests. The word charitable in this branch of law was not restricted in its meaning to the mere relief of poverty, but had been held to include many other forms of philanthropic effort.1
In particular in the case of Allan's Executor v. Allan1(approved by the House of Lords in Wordie's Trustees v. Wordie2) it had been held that a bequest for the benefit of foreign missions in certain specified countries fell within the category. The fact that a purpose was religious was not inconsistent with its being also charitable; that was clear from Allan's...
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