Scottish Court of Session Decisions

The late William Anderson, Lossiewynd, Elgin, who died 10th May 1884, by his trust-disposition and settlement directed certain sums of money to be paid “to the ministers of the Established and Free Churches of Scotland in the parish of Alves, the three Free Church ministers and senior Established Church minister in the parish of Elgin, and to Robert Young, solicitor, to be held by the said ministers and their respective successors in office, and by the said Robert Young and his nearest heir-male for the time, who shall be resident in the county of Elgin, in trust to invest the same and to pay the yearly interest thereof for bursaries to … young men to be of good character and fair talents, either residenters in the parish of Alves or in the parish and burgh of Elgin, whose parents are respectable and in narrow circumstances (residenters in the parish of Alves to be preferred on equal terms).” A difficulty arose as to the meaning and construction of the words “in the parish and burgh of Elgin.” The landward part of the parish of Elgin, which was of large extent and populous, was without the burgh, and on the other hand the burgh of Elgin extended in certain directions beyond the parish of Elgin into the adjoining parishes of New Spynie and St Andrew's. The parish was eleven miles or thereby in length, by an average breadth of about three and one-half miles. At the date of the will the population of the burgh within the parish was returned at 8600, of the burgh outwith the parish about 1100, and of the parish outwith the burgh about 1260. There were in the parish of Elgin in all three Free Churches and ministers, two in the burgh of Elgin, and the third in the landward part of the parish at Pluscarden, six miles or thereby distant from the burgh.

A special case was submitted by the Bursary Trustees of the first part, and by two intending candidates for the bursaries, who resided, the

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one in the landward part of the parish of Elgin (outside the burgh of Elgin), and the other in the burgh of Elgin but in the parish of New Spynie, of the second part, and they requested the opinion and judgment of the Court upon the following questions—“Must the persons entitled to the benefits of the bequests falling to be administered by the first parties be residenters in that part of the parish of Elgin which is also in the burgh of Elgin? or, Are the terms of the bequest to be construed so as to include residenters in any part of the parish of Elgin, and also residenters in any part of the burgh of Elgin?

Argued for the first parties—The testator meant that candidates must reside both within the parish and within the burgh of Elgin. If this were a description of land it would certainly need to satisfy both conditions.

Argued for the second parties—This was a charitable bequest and was to receive as liberal a construction as possible. The testator meant to benefit residenters in the parish of Alves, in any part of the parish of Elgin and in any part of the burgh of Elgin. He clearly did not intend to limit the parish of Elgin to that part of it, which was within the burgh, for he made the Free Church minister at Pluscarden one of the bursary trustees, and in case any in the burgh who were not also in the parish should be excluded, he was careful to add “and burgh of Elgin”— Bogie's Trustees v. Swanston, &c., ( “Mars” Training Ship case), February 5, 1878, 5 R. 634.

At advising—