Scottish Court of Session Decisions

In the year 1743, Charles Cairnie conveyed certain lands in trust to Mr Henry Lindsay and Mr David Black, ministers in Perth, for themselves, and in name of the elders and kirk-session of the burgh, as administrators of the Hospital of Perth, for the use and behoof of the poor within the burgh, and for other ends and purposes mentioned in the deed. It was therein provided, “that the said ministers and elders, and their successors in office, shall be bound and obliged, as by their acceptation hereof they bind and oblige themselves, to satisfy and pay yearly, for the space of ten years and cropts, from and after their entry to the said lands, to John Cairnie, son to John Cairnie, in Foulis' Wester, my brother-german, and to Charles Cairnie, son to Colin Cairnie, in Murrayshall, my brother-german, equally betwixt them, one just and equal third part of the free rent of the aforesaid lands, and, at the expiry of the said ten years, to pay to the said John and Charles Cairnie, my nephews, another just and equal third part of the said free rent, for the said bygone ten years, but without annual-rent, and then the said John and Charles Cairnie's right to the aforesaid two-third parts of the free rent is hereby declared to expire and be extinguished, and then the said ministers and elders, and their successors, shall be obliged to pay yearly, for the space of other ten years, one just and equal third part of the free rent of the said lands to other two young men, who are nearest to the age of fourteen years, whether below or above the said age, of the descendants of the said John and Colin Cairnies, Thomas Cairnie, some time at Dupplin, Hugh Cairnie, some time in Tulchan, and Alexander Cairnie, shoemaker in Edinburgh, my brethren-german, equally betwixt the said two young men, and at the expiry of the said ten years to pay to the said two young men equally, the other just and equal third part of the said free rent, for the said whole bygone ten years' space, but without annual-rent, and then these two young men's right to expire and cease, and immediately thereafter, the said ministers and elders, and their successors in office, are to pay to other two young men of the posterity of my said five brethren, nearest to the age aforesaid, equally betwixt them, the said two just and equal third parts of the said free rent for the space of other ten years, in the same way and manner as the same was paid to the said John and Charles Cairnies, my nephews, and so forth, to continue in all time thereafter, to pay the said two third parts of the free rents for ten years always to two young men of the posterity and age aforesaid, the said young men being obliged to prove their descent from some one or other of my said brothers, and also their age, by a certificate from the kirk-session where they were baptized, or in any other most convincing way; and if any of the said young men shall be removed by death during their several ten years, then what share shall be due at his death of his half of the third part of the rents reserved in the Hospital's hands, to have been paid unto him at the end of the said ten years, shall be paid to the said deceasor's executors and nearest of kin and another young man shall be put in his place. And if the descendants and posterity of my said brethren shall all happen to fail and be extinct, in that case any other young men of the sirname of Cairnie may claim and be entitled to the aforesaid right and privilege; and if no suck persons claim the same, the aforesaid burden on the said lands shall expire and be extinguished, and the lands shall wholly and absolutely belong to the Hospital.”

Upon the death of the truster, the ministers and elders of Perth entered on the management of the property so conveyed, and they and I their successors regularly paid over, in terms of the disposition, two-thirds of the rents, each ten years, to two young men in succession, descendants of the brothers of Charles Cairnie. The pursuer, William Cairnie, one of these descendants, drew a third part of the rents from Martinmas, 1824, to Martinmas, 1834, when his brother, Thomas Cairnie, who had been born between these terms, was named by the trustees to succeed him for the next ten years. The pursuer, Colin Cairnie, father of these parties, drew the other third from August, 1825, to August, 1835, at which term a doubt arose by whom he should be succeeded, the trustees refusing to name William Cairnie a second time, although no other legitimate descendant remained of the brothers of Charles Cairnie. With the view of raising the question of right, they made a nomination in favour of another Cairnie, a stranger in blood, or at least not in the line of descent pointed out in the deed.

Thereafter William Cairnie and his father raised action against the trustees, setting forth the provision in the trust-deed, and the circumstances in substance as above mentioned, and concluding to have it found and declared that William Cairnie, as the only descendant, besides Thomas Cairnie, of any of Charles Cairnie's brothers, was entitled, for the space of ten years from August, 1835, to draw one-third of the rents of the trust-property; and, farther, to have it found that, while any descendant of the brothers of Charles Cairnie is in existence, no other person of the sirname of Cairnie is entitled to the benefit of the provision, and that such descendant or descendants are entitled to draw the whole of the two-thirds of the rents.

In defence against this action, the trustees pleaded, in limine, that Cairnie, their nominee, having the real interest in the cause, ought to be made a party to the action.

This defence was repelled by the Lord Ordinary.

On the merits, they pleaded—

1. According to the sound and legal construction of the deed in question, and with reference to every test which can be applied to show the testator's intention, neither William Cairnie, nor any of the other descendants of the testator's brothers, are entitled to claim the benefit of the provision a second time.

2. There being, at the period of the above nomination, no descendant of any of the testator's brothers existing and eligible, the defenders were entitled to nominate a stranger, being of the name of Cairnie, and the nomination made by them was valid accordingly.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Finds, that according to the true meaning and just construction of the trust-deed libelled, no individual who had enjoyed the benefit of the provision in question, for one full period of ten years, can ever again be entitled to such provision; and therefore sustains the defences, assoilzies the defenders from the whole conclusions of the action, and decerns; But finds, that in the circumstances of this case, the whole

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^* “The trust-settlement is imperfectly expressed, especially in its latter clauses; but taking the whole together, there seems no reasonable doubt of the intention.

“The object is rather whimsical; but it is not well possible to mistake it.

“It obviously was to make a provision for a successions of young men of the name of Cairnie (the progeny of the truster's brothers in the first instance, but when they were exhausted, any others of the name), to endure for ten years only, at the expiration of which the right of each individual should ‘finally expire and be extinguished,’ and his place be taken by another. In the first three or four clauses, this enixa voluntas is expressed with the utmost anxiety and precision, though, as if the writer had been fatigued with the tediousness of the repetition, each time with increasing brevity, and omitting, or leaving to plain implication, more and more of the particulars, which had at first been stated in detail. But there is nothing from which any one, reading over tin; whole with care and candour, could possibly infer, that any one of these conditions was meant to be retracted and departed from, in behalf of any of the persona entitled to this special provision. To bring this clearly out, it is only necessary to ask, whether the sole and clear object of the deed would not be entirely defeated, if, instead of a temporary provision to a young man, for ten years and no more, any one Cairnie should be found entitled to hold this provision from infancy to extreme age, and for a period, it may be, of a whole century ? Yet this might well enough be the result, according to the pursuer's construction, if the last descendant of the truster's brothers should succeed in childhood, and survive without mule issue to a patriarchal antiquity.

“The Lord Ordinary thinks, therefore, that he does no violence to the tenor of the deed, but truly construes it according to the expressed meaning of tlio whole, when he reads the clause relied on hy the pursuer (at the top of page 3 of the summons), as if it had expressly contained a qualification (which he thinks necessarily implied in the context) importing that the failure and extinction of descendants, on which strangers were to become eligible, must be understood of such descendants only, as had not already received and exhausted their intended share of the bequest; and whose right and interest in it, had consequently, in the express terms of the deed, ‘expired and been extinguished.’

“If these words are unequivocally applied to individuals existing, known to the truster, and first in his favour, it is altogether inconceivable that he should have meant to dispense with them, in behalf of some unborn mid remote connexion; and to the effect of totally perverting the plain and palpable object of the whole provision. That object manifestly was, to assist young men, of his family or name, during the most important period of their education and to establish them in the world, with a small capital to begin on. From the imperfection of the provisions, this object might, no doubt, be occasionally frustrated, in the legitimate and unavoidable administration of the trust: But this is obviously to be ascribed to mere want of foresight and consideration in the maker; while, to adopt the pursuers' construction, would be imputing to him a wilful departure from the ruling and leading object of the settlement, and supposing that he really intended that a wealthy old gentleman of eighty, should be preferred, for a sixth or seventh time, to the benefit of a provision so described as this is, while scores of young Cairnies, about the age of fourteen, were growing up in ignorauce round his doors, from inability to pay for education.”

expenses hitherto incurred by both parties may be defrayed out of the trust funds.”

The pursuers reclaimed against this interlocutor. Before the note came to be advised, one Stephen Miller Cairnie, lawful son of an illegitimate descendant of a brother of Charles Cairnie, brought another action against the trustees, alleging himself to be nearest to the age of fourteen years of any of the descendants of the brothers, and concluding to have it found and declared that he was entitled to draw one third of the rents for ten years from August 1835, in terms of the trust disposition.

In support of his action, Stephen Cairnie pleaded—

1. That he had a preferable claim to the benefit of the trust, in respect not only of his being descended from one of the truster's brothers, but of his being the claimant nearest to the age of fourteen years; 2. That the nominee of the trustees must he held as a stranger in this competition, not being descended from any of the truster's brothers, to whose posterity the preference from relationship is confined by the deed, and he cannot be preferred to another young man of the name of Cairnie nearer to the age of fourteen.

It was pleaded in defence—

1. That Stephen Cairnie cannot, according to a sound construction of the deed, claim the bursary as a “descendant” or “of the posterity” of the testator's brothers, his father having been an illegitimate child; 2. That Stephen must be considered as having no legal title to the name of Cairnie, and consequently as not entitled to claim in virtue of that appellation; 3. That even holding Stephen to be eligible as a stranger bearing the name of Cairnie, still the nomination made by the trustees was valid and effectual under the discretionary powers conferred upon them by the trust-deed.

William and Colin Cairnie's reclaiming note having been put out for advising (June 21, 1836), the case was sisted till the action at Stephen Cairnie's instance should be disposed of. This last having been reported to the Court by the Lord Ordinary, with the subjoined note, ^* both cases now came on for advising.

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^* “As the original action stands sisted in tho Inner House till the preferable claim of the present pursuer is disposed of, the best way to get a speedy decision for all parties, is obviously that which has been adopted.

“On the merits, the Lord Ordinary is of opinion that the lawful son of a bastard is as much entitled to use the surname by which his father was always known and distinguished, as the lawful son of one not a bastard; provided always, that the surname was settled and fixed on the bastard throughout his life, and not changed or assumed for any interested purpose. If this were not so, no man would be entitled to his surname, in the line of whose male ascendants a malicious diligence might detect an illegitimacy.

“But then the Lord Ordinary is clearly of opinion, that (especially as to a Cairnie not of the preferred brotherhood) it is not imperative on the Trustees to prefer the candidate who may happen to be, by a few months, nearest to the precise age of 14, to others who, in all other respects, of poverty, personal merit, and vicinity to, or acquaintanceship with, the founder of his family, have a far better claim to the appointment; and, conceiving that the trustees are entitled to the exercise of a fair discretion, and that there is no serious allegation of their having abused it otherwise than by not acting rigidly on the criterion of age, he would have no hesitation in confirming the election they have made, and rejecting the claims of the purser.”

In the first action, the Court refused the reclaiming note. In the other iction, their Lordships were of opinion that Stephen Miller Cairnie, being be son of a bastard, could not be regarded as a “descendant” entitled to claim the provision in question, and accordingly sustained the defences, refusing the pursuer his expenses out of the trust-funds.