Turnbull's Trustees v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1917 |
| Date | 26 June 1917 |
| Docket Number | No. 79. |
| Court | Court of Session |
Ld. Ormidale, Lord Justice-Clerk, Lord Dundas, Lord Salvesen.
Charitable Bequests and TrustsUncertaintyPublic, benevolent or charitable purposes in connection with the parish of L. or the neighbourhood.
A testatrix directed her trustees to apply the residue of her estate for such public, benevolent or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper.
Held (1) that the clause was to be read as if it had been expressed for public purposes, benevolent purposes, or charitable purposes; (2) (diss. Lord Dundas, rev. judgment of Lord Ormidale) that the phrase public purposes, even with the limitation to the neighbourhood of Lesmahagow, was too indefinite to receive effect; and, accordingly, that the whole bequest was void from uncertainty.
Blair v. Duncan, (1901) 4 F. (H. L.) 1, followed.
The late Mrs Annabella Robertson Paterson or Turnbull, widow of the Rev. Thomas Turnbull, one of the ministers of Lesmahagow, left a trust-disposition and settlement whereby, after giving certain legacies and annuities, she directed her trustees as follows:In the last place, with regard to the disposal of the residue and remainder of my means and estate, including the principal sums set free from time to time by the death of the said annuitants, except so far as hereinbefore otherwise provided, the same shall be disposed of as I shall direct by any writing under my hand showing my wishes and intentions although informally executed, or by any codicil hereto under my hand; and failing any such, then I hereby direct my trustees to hold such residue till such time or times as they see fit and apply the same for such public, benevolent or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper.
Certain questions having arisen under the settlement, and in particular a question as to the validity of the bequest of the residue, John Houston and others, the trustees then acting under the settlement, brought an action of multiplepoinding, and called as defenders the beneficiaries under the settlement and also the Lord Advocate as representing the Crown as ultimus hres.
The trustees lodged an administrative claim to the residue, which formed part of the fund in medio, and the Lord Advocate also lodged a claim to the residue, and pleaded, inter alia;(1) The truster's direction for the disposal of the residue of her estate, being void from uncertainty, cannot be given effect to.
On 4th July 1916 the Lord Ordinary (Ormidale) pronounced the following interlocutor:Finds that the direction in the truster's settlement that the trustees are to hold the residue and remainder of the trust-estate till such time or times as they see fit, and apply the same for such public, benevolent or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper, is not void from uncertainty: Repels the claim for the Lord Advocate, sustains the claim for Mrs Turnbull's trustees, ranks and prefers them to the fund in medio accordingly, and decerns.
Lord Ormidale'sopinion.[After dealing with a question with which this report is not concerned, and after quoting the residue clause of the settlement]The question whether or not a particular bequest is void from uncertainty has been the subject-matter of many decisions in recent years. The case on which the Lord Advocate chiefly founds in the present action is Blair v. DuncanSC, 3 F. 274, and 4 F. (H. L.) 1. It was there held that a bequest for charitable or public purposes was void, on the ground that the words fell to be read disjunctively, that it would therefore be in the power of the trustees to apply the whole fund to public purposes, and that that was a description of the objects of the bequest which was too vague and indeterminate to be capable of receiving effect. The bequest in the present case is for public, benevolent or charitable purposes. It is said that these words must be read disjunctively, so that it would be in the power of the trustees to apply the bequest wholly for one or other of them and therefore for public purposes. An argument was directed against the view that the words must be read disjunctively, which I shall consider later, but, assuming that they must be read disjunctively, then if there is no other expression in the bequest restricting the generality of the phrase public purposes, the bequest would be invalid. The trustees, however, maintain that the words in connection with the parish of Lesmahagow or the neighbourhood, supply a sufficient determination of the purposes to make the law of Blair v. Duncan inapplicable. This raises a question of some difficulty.
A rule which has been accepted as of general application in cases of this class was thus stated by Lord Lyndhurst in Crichton v. Grierson, 3 W. & S. 329, at 3389:A party may, in the disposition of his property, select particular classes of individuals and objects, and then give to some particular individual a power, after his death, of appropriating the property, or applying any part of his property, to any particular individuals among that class. In Weir v. Crum Brown, 1908 S. C. (H. L.) 3, the Lord Chancellor (Loreburn), at p. 4, says,All that can be required is that the description of the class to be benefited shall be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator. I may also refer to the case of Allan's Executor v. Allan, 1908 S. C. 807, where Lord Kinnear (at p. 814) puts the matter thus:That is, therefore, the rule which is held to be established by Crichton v. Grierson and the subsequent cases, and the question to be put in each particular case is whether the description of the class to be benefited is sufficiently exact to enable an executor of common sense to carry out the expressed wishes of the testator. Putting that question in this particular case the answer must, in my opinion, be in the affirmative. It was not decided, as I read the judgments in Blair v. Duncan, that the words public purposes are in themselves so absolutely vague and indefinite, so absolutely misty, to adopt Mr Watson's description of them, as to be wholly incapable of receiving effect in any circumstances. Now the want of any limitation by locality appears to have been present to Lord Robertson's mind in Blair v. Duncan. The testatrix, he says, has done nothing like selecting a particular class or particular classes of objects. She excludes individuals, and then leaves the trustee at large, with the whole world to choose from. There is nothing affecting any community on the globe which is outside the ambit of his choice. As Lord Brampton says in the same case, the trustee had conferred upon him the power to apply the whole of the bequest solely to any one or more of innumerable public purposes comprised within an unlimited area. In short, the intentions of the testatrix are on the face of the will and codicil left, so far as relates to the public purposes to be benefited, in absolute uncertainty. That cannot be predicated of the truster's intentions here. The public purposes to be benefited are not left in absolute uncertainty. They are public purposes connected with the parish of Lesmahagow or the neighbourhood. The words public purposes, which standing by themselves are entirely vague and indefinite, become in my judgment sufficiently precise and determinate, when read in connexion with an area so restricted as a particular parish, to enable the trustees of the will to carry into effect the express wishes of the testatrix. I admit the force of the distinction drawn by Mr Watson between the use of the word institutions and the word purposes when read with reference to a particular locality (M'Conochie's Trustees, 1909 S. C. 1046). It would certainly have been easier to reach the decision I have arrived at if the word in this case had been institutions and not purposes; but the distinction is not to my mind necessarily vital and conclusive. Each case must of course be decided on its own merits with reference to the particular form of words used by the truster; but that the limitation of the operation or application of the bequest to a precise locality may, to say the least, be helpful towards reducing the indefinite to the definite, has been recognised in the cases of Smellie's TrusteesUNK, 13 S. L. T. 450, and M'Phee's Trustees, 1912 S. C. 75. No doubt on the other hand it was not given effect to in Brown's TrusteesUNK, (1905) 13 S. L. T. 72, and M'Grouther's TrusteesUNK, (1907) 15 S. L. T. 652. In Shaw's TrusteesSC, 8 F. 52, there was a special power given to the trustees which, as Lord Stormonth-Darling observed, left the trustees as free to make a will for the testatrix as were the trustees in Grimond's case (7 F. (H. L.) 90), which, of course, is the thing struck at by the rule which makes a bequest void from uncertainty. In the present case it seems to me that the limitation of the bequest to the parish of Lesmahagow or the neighbourhood excludes entirely the power of the trustees to make a will for the testatrix, and I cannot think that they will have any difficulty in the exercise of their discretion in determining what is a public purpose in connexion with the locality thus defined by the testatrix (Cleland's Trustees, 1907 S. C. 591).
I did not understand it to be maintained that the word benevolent created any difficulty, and in the light of decided cases I do not think it does.Hay's Trustees v. Baillie, 1908 S. C. 1224; Paterson's Trustees, 1909 S. C. 485; Mackinnon's Trustees, 1909 S. C. 1041.
Accordingly I am prepared to hold that the residuary bequest under Mrs...
To continue reading
Request your trial
- Turnbull's Trustees v Lord Advocate
-
Reid's Trustees v Cattanach's Trustees
...C. 124. 6 1908 S. C. (H. L.) 3, at p. 4, [1908] A. C. 162, at p. 167. 7 3 W. & S. 329, at p. 338. 8 Turnbull's Trustees v. Lord Advocate, 1917 S. C. 591, at pp. 598 and 9 Turnbull's Trustees v. Lord AdvocateELR, 1917 S. C. 591, Lord Justice-Clerk Scott Dickson at p. 596, 1918 S. C. (H. L.) ......
-
Edgar's Trustees v Cassells
...at p. 643; In re EadesELR, [1920] 2 Ch. 353; M'Conochie's Trustees v. M'Conochie, 1909 S. C. 1046; Turnbull's Trustees v. Lord Advocate, 1917 S. C. 591; Symmers's Trustees v. Symmers, 1918 S. C. 2 Turnbull's Trustees v. Lord Advocate, 1917 S. C. 591, Lord Justice-Clerk, at p. 598, aff. 1918......
-
Wink's Executors v Tallent
...1908 S. C. 1224. 2 2 W. & S. 80. 3 2 Sh. & M'L. 866. 4 [1891] A. C. 531. 5 (1894) 21 R. 638. 6 1929 S. C. 727. 7 1918 S. C. (H. L.) 88. 8 1917 S. C. 591, at p. ...