Hay's Trustees v Baillie
| Jurisdiction | Scotland |
| Judgment Date | 18 July 1908 |
| Docket Number | No. 178. |
| Date | 18 July 1908 |
| Court | Court of Session |
Ld. Johnston, Lord M'Laren, Lord Kinnear, Lord Dundas.
Charitable and Educational Bequests and TrustsUncertaintySocieties or institutions of a benevolent or charitable nature.
A testatrix directed her trustee or trustees to apportion and pay over the proceeds of the residue of her estate amongst such societies or institutions of a benevolent or charitable nature in such proportions as he or they shall in their own discretion think proper.
Held (rev. judgment of Lord Johnston) that the bequest was to be construed as a bequest in favour of charitable societies and institutions, and was not void from uncertainty.
Mrs Margaret Baillie or Hay, who resided at Holmwood, Uddingston, died on 29th December 1898, leaving a trust-disposition and settlement whereby she conveyed her whole estate to William Jackson Andrew and another, as trustees for the purposes therein set forth.
The last purpose of the trust-disposition and settlement was as follows:In the last place, I direct my trustees or trustee on the death of the survivor of me and the said Margaret M'Donald to apportion and pay over the free proceeds of the whole residue of my means and estate, after giving effect to the above provisions, to and amongst such societies or institutions of a benevolent or charitable nature in such proportions as he or they shall in their own discretion think proper, but excluding all societies or institutions either connected with the Roman Catholic body or under the control or management or even general management of those connected with that body.
Margaret M'Donald, who was liferented in a portion of the estate, survived the testatrix and died on 5th January 1905. On her death the residue of the estate was set free to be distributed by the trustees.
A doubt having been expressed as to whether the bequest of the residue was not void from uncertainty, the trustees were advised that they would not be in safety to distribute the residue until the validity of the bequest had been determined by the Court. Accordingly, on 19th January 1907, they brought an action of multiplepoinding, to which the whole heirs ab intestato of the testatrix 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 claimed to be ranked and preferred to the whole fund in medio in order that the same may be administered by them in terms of the residuary clause of said trust-disposition and settlement; or, alternatively, in order that they may administer and divide the same amongst such of the testatrix's heirs in mobilibus as may be found thereto entitled.
They pleaded;(1) Said bequest of residue being valid and falling to receive effect, the claimants are entitled to be ranked and preferred to the whole fund in medio in terms of their primary claim. (2) In any event, the claimants are entitled to be ranked and preferred thereto for the purpose of administration in terms of their alternative claim.
Claims were also lodged for certain of the heirs ab intestato, who maintained that the bequest of the residue of the estate was void from uncertainty, and that it had accordingly fallen into intestacy, and fell to be distributed among the heirs ab intestato of the testatrix.
On 14th November 1907 the Lord Ordinary (Johnston) pronounced an interlocutor finding that the bequest in dispute was void from uncertainty, and therefore sustaining the claims for the defenders, and ranking and preferring the pursuers and real raisers to the fund in medio in terms of their alternative claim.*
The claimants, the pursuers and real raisers, reclaimed, and the case was heard before the First Division on 2d and 3d July 1908.
Argued for the reclaimers;(1) It could not be disputed that if the word charitable alone had been used, the bequest would have been good.1 But in the phrase benevolent or charitable the use of or was really conjunctive, not disjunctive. The words were in fact employed as synonymous or as exegetical of one another, and not for the purpose of describing institutions of a distinctive character. It was impossible to draw any distinction between charitable and benevolent. The interpretations that had been put upon the word charitable were equally applicable to benevolent.2 The use of the words as qualifying institutions emphasised the view that they were synonymous or exegetical. The phrase was, in fact, equivalent to benevolent and charitable, and that phrase had again and again been construed as forming a good bequest.3 (2) Even if
or was to be read in its disjunctive sense, the word benevolent was in itself sufficient to constitute a good bequest. All that was necessary was, in the words of Lord Chancellor Loreburn,1 that the description should be sufficiently certain to enable men of commonsense to carry out the expressed wishes of the testator.2Benevolent satisfied that test. For the reasons already given it was practically indistinguishable from charitable, and charitable admittedly satisfied the test. The Scottish cases where the disjunctive addition of another descriptive word had been held to vitiate such a bequest were all cases where the additional word was wider and vaguer in its significance than benevolent.3 The English cases4 founded on by the Lord Ordinary were not authoritative in Scotland, for they turned on the technical rules of interpretation of charitable bequests in England, based on the statute of Elizabeth.5There was no question of the power of the Court in Scotland to put a benevolent construction
on charitable bequests and to enforce the will of the founder,1 and this was clearly a case for the exercise of that power.
Argued for the respondents;The rule of law as to giving effect to such bequests was the same in England and Scotland, and was as follows:A testator could not delegate the making of his will to third parties. But if he described a class of purposes of a sufficiently definite and restricted character, and appointed persons to select within that class, the bequest would be good. One class of purposes had, by decision, been artificially established as sufficiently definite and restricted, and that was charitable purposes. To bring this bequest, therefore, within those which the Court would uphold, it must be shewn either to fall within the region of charitable purposes, or else to be for a class of objects sufficiently defined and restricted. This bequest satisfied neither of these requisites. (1) It was not for a charitable purpose. The use of the word or was
disjunctive,1 and extended the bequest beyond the limits of charitable institutions to the wider and vaguer region of benevolent institutions, and thus rendered the bequest void. That had been definitely decided in England.2 So too in In re MacDuffELR,3 where the word was philanthropic, a word of narrower significance than benevolent, the bequest was held to be bad. With these cases fell to be contrasted In re BestELR,4 where the use of the conjunctive and benevolent was interpreted as meaning such charitable purposes as are benevolent, and was therefore held to form a good bequest. (2) If benevolent was not synonymous with charitable, it was in its own nature, on the authority of the cases already cited, not sufficiently definite and restricted to make the bequest good. Therefore the matter was foreclosed by English decisions, and the reclaimers had been able to cite no Scottish authorities to the opposite effect. There was no reason, founded on the technical rules of interpretation of the word charitable
table in England, to make these English decisions inapplicable in Scotland, for the interpretation of charitable in England was really wider than in Scotland, and covered everything that would be admitted as charitable in Scotland.1 The use of the word institutions did not help the reclaimers' case. What the Court had to look at was the objects of the institutions, not the fact that they were institutions.
At advising on 18th July 1908,
Lord M'Laren.The question we have to consider under this reclaiming note relates to the validity and effect of Mrs Hay's residuary bequest, under which her trustees are directed to apportion and pay over the free residue to or amongst such societies or institutions of a benevolent or charitable
nature as the trustees may approve, but to the exclusion of Roman Catholic institutions.
I desire to concur in the opinion which will be delivered by Lord Dundas, in which the authorities bearing on this interesting question are fully considered, and shall only add a short statement of my view as to the principles which I think should be applied in the construction of bequests of this character. And first in order, though not in importance, I may say that in many cases relating to special and general legacies, to ademption and the interpretation of ambiguous words of bequest, this Court has been aided by the consideration of the decisions of' the English Courts, where it appeared that the principles which governed these decisions were such as we should ourselves apply; and in this case counsel have very properly and usefully brought under our notice the English decisions which may throw light on the question before us. It is a principle common to the two systems of
law that bequests for charitable purposes should receive an indulgent and favourable criticism with a view if possible of giving effect to the testator's benevolent intentions. In the development of this principle the rule against giving effect to bequests of a wholly undefined character has been relaxed in favour of charities. I note in passing that it appears from the reported cases that the Courts of England in considering whether a particular bequest falls within the description of...
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