Turnbull's Trustees v Lord Advocate
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1918 |
| Date | 29 January 1918 |
| Docket Number | No. 8. |
| Court | House of Lords |
Ld. Chancellor (Finlay), Viscount Haldane, Ld. Dunedin, Ld. Atkinson, Lord Shaw of Dunfermline, Lord Justice-Clerk, 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 (aff. judgment of the Second Division) (1) that the clause was to be read as if it had been expressed for public purposes, or benevolent purposes, or charitable purposes; (2) that the phrase public purposes, even with the local limitation, was too indefinite to receive effect; and, accordingly, that the whole bequest was void from uncertainty.
Blair v. DuncanELR, (1901) 4 F. (H. L.) 1, [1902] A. C. 37, applied. Dictum of Lord Romilly, M.R., in Dolan v. MacdermotELR, (1867) L.R., 5 Eq. 60, overruled.
WritConstruction of DeedPunctuation.
The punctuation of a deed may be looked at for the purpose of aiding its construction.
(In the Court of Session, 26th June 19171917 S. C. 591.)
The claimants Mrs Turnbull's Trustees appealed to the House of Lords.
The case was heard on 17th and 18th December 1917, when the undernoted authorities were cited.1
At delivering judgment on 29th January 1918,
Lord Chancellor.The question in this case is as to the validity of a clause in the trust-disposition and settlement of Mrs Turnbull, dated 2nd June 1894.The testatrix directed that the residue of her estate should be disposed of as she should direct by any writing or codicil under her hand. The clause then proceeded as follows: 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. No direction in writing or by codicil was given by the testatrix, and the question arises whether the bequest for public, benevolent, or charitable purposes is good.
It has been settled by a decision of this House (Blair v. DuncanELR2) that a bequest for such charitable or public purposes as my trustee thinks proper is void for uncertainty. In such a clause the words charitable or public are used disjunctively, and, as Lord Shand says (at p. 2),
a bequest for public purposes to be taken by a person or persons named by the testator, unlike a bequest expressly limited to a charitable purpose, is not sufficiently definite, but is too vague and wide to form the subject of a valid bequest. While charitable purposes have a defined meaning both in England and Scotland, public purposes are in their nature entirely uncertain. The same rule has been applied in Grimond v. GrimondELR,1 reversing the decision of the Court of Session,2 in the case of a bequest to such charitable or religious institutions and societies as the trustees might select. The term religious was held to be too vague, and, as the words were to be read disjunctively, the bequest was void on the principle which was applied in Blair v. DuncanELR.3
Mr Chree, for the appellants in the present case, sought to distinguish these authorities on the ground that there was no local limit in the bequests there, while in the present case the purposes are to be in connexion with a particular parish or the neighbourhood. It is quite true that the absence of any restriction as to locality is adverted to in some of the judgments in Blair v. DuncanELR3 as adding an additional element of vagueness to the bequest. Lord Robertson says (at p. 5): It seems to me that this testatrix 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. But while this consideration emphasized the vagueness of the bequest in the particular case, it was not really necessary for the decision, which rests upon the vagueness of the purpose, whatever the locality within which the purpose is to be served. This sufficiently appears from the judgments of Lord Halsbury, Lord Shand, and Lord Davey in Blair v. DuncanELR,3 and the vagueness of the purpose itself, apart from locality, is pointed out in the clearest terms by Lord Robertson himself. The addition of a local limit might well make a difference in favour of a bequest if the bequest was in favour of institutions within a certain area, the particular institution to be selected by the trustee. This distinction is pointed out by Lord Stormonth-Darling in his judgment in Shaw's Trustees v. Esson's TrusteesSC,4 where the whole subject is discussed in a very lucid and valuable judgment. Mr Chree relied in support of his contention upon the case of Dolan v. MacdermotELR,5 where the Master of the Rolls, Lord Romilly, after saying that a bequest for such public purposes as the trustees select would be bad, goes on to say that, if a place is connected with the gift so that the public purposes must be for the benefit of the place specified, then it is good. I do not think this dictum is correct. The decision of Lord Romilly was affirmed on appeal 6 by Lord Cairns, L.C., but not on this ground.
It follows from the decision to which I have referred that, if the clause is to be construed as being for such public or benevolent or charitable purposes in connexion with the locality as the trustees think proper, it would be bad. The purpose is too vague, and the vagueness of the
purpose is not cured by the specification of the locality to be benefited. It was contended, however, on behalf of the appellants that the clause should not be read as applying to public or benevolent or charitable purposes, but that on its true reading it was for the benefit of benevolent or charitable purposes of a public nature in connexion with the parish, and that so construed it would be good, as benevolent or charitable purposes would be held to be charitable purposes. It appears to me that, without the punctuation which appears in the will as printed in the appendix, this is quite a possible construction, and where words are ambiguous a construction should be adopted which will not make the bequest void. But we are informed that the comma after the word public and that after the word benevolent appear in the original will, and this points plainly to the...
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