Rintoul's Trustees v Rintoul
| Jurisdiction | Scotland |
| Judgment Date | 04 March 1949 |
| Docket Number | No. 35. |
| Date | 04 March 1949 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
SuccessionValidity of testamentUncertaintyBequest of residue to "charitable or social institutions in Glasgow or elsewhere"Whether bequest void from uncertaintyCharity.
A testator directed his trustees "to realise and convert into money" the residue of his estate and "to pay and convey one half thereof equally amongst whatever charitable or social institutions in Glasgow or elsewhere they in their absolute discretion shall consider fit."
Held that the bequest was void from uncertainty.
David Blyth Rintoul died on 22nd March 1944 leaving a trust-disposition and settlement dated 9th February 1939 by which he conveyed his whole means and estate to trustees. After instructing payment of a number of legacies to specified persons, the testator directed his trustees to pay to his wife, in the event of her surviving him, an alimentary liferent. The testator's wife claimed her legal rights, and all sums due in that respect were paid. The testator further provided for the disposal of the residue of his estate in the following terms:"(Lastly) On the death of my said wife should she survive me, or on my own death should she predecease me, I direct my trustees to realise and convert into money the residue of my said means and estate and to pay and convey (a) one half thereof equally amongst whatever charitable or social institutions in Glasgow or elsewhere they in their absolute discretion shall consider fit. " Under head (b) of the same purpose the testator made provision for the disposal of the remaining half of the residue of his estate amongst his brother and sisters and their issue.
The testator, who had no issue, was survived by his widow, five sisters, a brother, and a nephew, the son of a brother who had predeceased the testator.
A question having arisen as to the validity of the direction in head (a) of the last purpose of the testator's trust-disposition and settlement, a special case was presented for the opinion and judgment of the Court of Session in which the testator's trustees were the first parties and the heirs ab intestato of the testator were represented by the second parties.
The first parties contended that the bequest of one half of residue in head (a) of the last purpose of the trust-disposition and settlement was valid and effectual.
The second parties contended that the bequest was void from uncertainty, and that the one half of the residue lapsed into intestacy and fell to be divided amongst the truster's whole heirs ab intestato.
The question of law was:"Is the said bequest of one half of the residue of the testator's estate to charitable or social institutions void from uncertainty?"
The case was heard before the Second Division (consisting of the Lord Justice-Clerk, Lord Mackay and Lord Birnam) on 3rd and 4th March 1949.
LORD JUSTICE-CLERK (Thomson).In this case we have to consider a bequest of one-half of a residue amongst "whatever charitable or social institutions in Glasgow or elsewhere they (the testator's trustees) in their absolute discretion shall consider fit."
We have had an interesting discussion on what is an interesting topic, but it seems to me that the principles on which our decision must rest are clear and well established. The testator must make his will for himself. He cannot leave it to trustees to make a will for him. He must define and identify sufficiently in his will the objects which he wishes to benefit. The underlying reason is that trustees should be able to select within certain defined limits instead of being given an unlimited discretion. The issue in this case just comes to be whether
the testator has sufficiently defined the class or classes to be benefited, so that when the trustees come to make their selection they are doing what the testator has told them to do and are not just exercising a free choiceIn conformity with these principles the Courts have held on numerous occasions that the employment of words like "public" or "religious" without further definition is too wide. In a bequest leaving it to trustees to select a public institution or a public purpose there is really no trust purpose expressed at all and nothing to follow or guide their choice. There is however one exception to this rule, and that arises through the favour which is extended to the word "charitable." If the testator uses the word "charitable," then that is regarded as a sufficiently identified class and no further definition is required.
In this case it was argued to us that "social" is a narrower word than "charitable," but it seems to me that that is a hopeless contention. I have no doubt at all that the word "social" is a word of very wide connotation indeed, and its use raises much the same sort of...
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Milne's Trustees v Davidson
...agree. The Court answered questions 1 and 3 in the affirmative and questions 2 and 4 in the negative. 1 Rintoul's Trustees v. RintoulSC, 1949 S. C. 297. 2 Brough v. Brough's TrusteesUNK, 1950 S. L. T. 3 Gloag on Contract, (2nd ed.) p. 403. 4 Reid's Trustees v. Cattanach's Trustees, 1929 S. ......