Wink's Executors v Tallent
| Jurisdiction | Scotland |
| Judgment Date | 27 March 1947 |
| Docket Number | No. 48. |
| Date | 27 March 1947 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
SuccessionValidity of testamentUncertaintyBequest of residue to institutions of "a benevolent or charitable nature"Whether bequest void from uncertaintyCharity.
A testatrix gave directions for the division of the residue of her estate "amongst such societies or institutions of a benevolent or charitable nature as my executors in their sole discretion may select and that in such shares and proportions as my executors may think proper."
Held that the bequest was to be construed as a bequest in favour of charitable societies and institutions, and was not void from uncertainty.
Hay's Trustees v. Baillie, 1908 S. C. 1224,followed.
Chichester Diocesan Fund and Board of Finance v. SimpsonELR, [1944] A. C. 341, commented on.
Authorities reviewed.
ExpensesTrustMultiplepoindingValidity of bequest to unascertained charitiesTrustees agreeing to pay expenses of parties disputing validityUnsuccessful reclaiming motion against judgment affirming validityRefusal of Court to award expenses to reclaimers.
Executors, who had brought an action of multiplepoinding and exoneration for the purpose of determining the validity of a residuary bequest in favour of charities to be selected by themselves, agreed to pay the expenses of the only other claimants, who were the heirs in mobilibus of the testatrix. The Lord Ordinary affirmed the validity of the bequest, and the heirs in mobilibus reclaimed unsuccessfully against his judgment.
The reclaimers having moved for expenses in the reclaiming motion in terms of the agreement,
Held that, as the agreement affected the interests of parties who were meanwhile unascertained, the Court had a duty to apply an independent judgment to the question of expenses; and motionrefused.
Mrs Jemima Milne M'William or Wink, who resided in Elgin, died on 29th January 1942, leaving a will and codicil whereby she appointed Thomas Robertson Mackenzie and Allan Fraser Macdonald to be her executors. After bequeathing a number of legacies to individuals, she left legacies to a hospital in Elgin, to Elgin District Nursing Association, to the Royal Society for the Relief of Indigent Gentlewomen of Scotland, to the Morayshire Police-Aided Scheme for Destitute Children, to a home for incurables in Elgin, and to a church in Elgin. She further directed her executors to pay "any further legacy or other bequest" which might be contained in any writing under her hand subsequent to the date of her will. Thereafter she gave the following direction:"With reference to the residue of my estate I direct my Executors to divide the same amongst such Societies or Institutions of a benevolent or charitable nature as my Executors in their sole discretion may select and that in such shares and proportions as my Executors may think proper."
A question having arisen as to whether the bequest of residue was valid, the executors brought an action of multiplepoinding and exoneration against Miss Kathleen Isabella Tallent and others, being the whole persons known to them who had or might have an interest in the succession if the bequest was invalid.
The fund in medio consisted of the residue, which amounted to 12,000; and the pursuers averred that they had as yet made no selection of societies or institutions in terms of the direction given by the testatrix.
Claims were lodged by the pursuers, who maintained that the bequest was valid, and by the defenders, who averred that they were the whole heirsin mobilibus ab intestata, and maintained that the bequest was invalid.
On 30th January 1947, after a Procedure Roll discussion, the Lord Ordinary (Mackintosh) sustained the pursuers' claim and repelled the defenders' claim.
At advising on 27th March 1947,
LORD PRESIDENT (Cooper).This case raises in pure form the question whether a direction to executors to divide a sum "amongst such Societies or Institutions of a benevolent or charitable nature" as they might select is, or is not, void from uncertainty.
The identical formula occurred in Hay's Trustees,7 in which it was held that the bequest was valid, upon the view that the two adjectives were not used disjunctively but exegetically of each other, if indeed they were not synonymous. A like interpretation was applied to very similar phrases inPaterson's Trustees8 and Mackinnon's Trustees.9 This group of cases has often been cited, and the rule of interpretation which they exemplify has been incorporated in every Scottish textbook which has since been published dealing with the subjectMenzies on Trustees, (2nd ed.) p. 669; Dykes, Supplement to M'Laren on Wills, p. 226; Mackenzie Stuart on Trusts, p. 112; Encyclopdia, vol. iii, p. 221. Neither in any Scottish decision nor in any Scottish legal work will there be discovered the slightest suggestion that the rule is wrong, and it would have been distinctly odd if such a suggestion had been made, considering the great eminence of the learned Judges in whose considered opinions the rule originated. During the intervening forty years the formula has doubtless been employed in many settlements which never came before the Courts, and must have regulated the disposal of many Scottish bequests. If there is one rule in this branch of Scots law which can fairly be described as settled, it is the rule in Hay's Trustees.7
I have stated the position with such emphasis because of the form taken by the argument for the reclaimers. After a faint (and manifestly hopeless) attempt to distinguish Hay's Trustees,7 their submission was that Hay's Trustees7 and its sequels now fell to be discarded
because of the decision of the House of Lords in the Chichester Diocesan FundELR.1 They did not move that a larger Court should be convened to reconsider Hay's Trustees,2 but indicated frankly that, if we regarded ourselves as bound by the authority of the Scottish decisions, the matter would be carried to the House of LordsIt would be sufficient for the disposal of this reclaiming motion to hold, as I do, that the point is unquestionably covered by binding Scottish decisions of high authority, which have stood unchallenged for more than a generation, and which cannot be displaced by a decision in any English appeal on a question of English law. It is only out of respect for the argument to which we listened that I deal with the matter in greater detail.
The ChichesterELR case1 is not only an English decision but it expressly bears to be a decision only on English law, given by Judges whose attention had been pointedly drawn to the different current of Scots law in Hay's Trustees2 and its sequels, and who were careful to note the differences between the two systems. These differences are numerous and deep seated, and it is only upon the most superficial view that they can be regarded as other than critical for the decision of the question of construction raised in this case. In England the whole subject is overshadowed by the statute of Elizabeth3 and the artificial structure which has been erected upon it; but that statute is unknown to Scots law. The Scottish rules affecting charitable and public trusts are the product of our common law without any significant interference by the Legislature; and they are of comparatively recent growth, for the subject was largely the province of the Officials and the Commissary Courts until the 19th century. The English law of mortmain is unknown in Scotland. The English rule against perpetuities is not only unknown to the common law of Scotland but with us the attitude to perpetuities has from the first been one of benevolence and not of distaste. The jurisdiction of the Court of Session over trusts is radically different from that of the Court of Chancery. With such a fundamentally distinct historical and doctrinal background it is impossible for a Scots lawyer and an English lawyer to approach the present problem of construction without entirely different predilections, and I have failed to understand why it should be supposed to be remarkable that the rule in Hay's Trustees2 should be good law in Scotland and not in Englandstill less why it should be supposed that the English solution is preferable to the Scottish, or that it is desirable that in this respect Scots law should now sink its identity in English law. It would be much more remarkable if two streams of thought, originating so far apart and travelling by such diverse channels, happened to coalesce.
If it is necessary to explain and justify the root distinction between the Scottish and the English attitude to this question of interpretation,
I might put the matter thus, first founding on the language of Lord Buckmaster in Attorney-General for New Zealand v. BrownELR,1 at p. 396. In the construction of wills the word "charity" and its derivatives have always possessed in England a limited and technical meaning impressed by a well-established series of authorities which it is now too late to question. "Charitable" in an English will is a nomen juriswhich is not open to exegesis by the conjunction of qualifying epithets, for it is only "in the minds of persons unversed in the subtlety of legal phrases" that "benevolent" and "charitable" are equivalent terms. But in Scotland, except for the limited purpose of United Kingdom taxing statutes, we are still "unversed in the subtlety" of the English law of charities, and have no difficulty in subjecting the adjective "charitable" to exegesis from a suitable context. InCrichton v. Grierson,2 at p. 343, it was observed by Lord Chancellor Lyndhurst that the law of England is more strict than the law of Scotland in regard to charitable bequests, and inMiller v. Black's Trustees,3 at p. 892, Lord Brougham referred to this proposition as one with regard to which there could be no doubt. The best known explanation of the meaning of "charitable" in Scots law is still the speech of Lord Watson in PemselELR,4 at pp. 557 et seq., in which his Lordship...To continue reading
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