Scottish Court of Session Decisions

John Hoyes Gill, postmaster at Forres, died on 6th June 1889. He left a holograph settlement in the following terms—“ Forres, 6 th June 1889.—In order to do something to benefit the needy, I hereby bequeath one-third part of the proceeds of my property, heritable and moveable, to my cousin Eliza Murray, presently residing at thirty-five Moray Street, Elgin; and one-third to my aunt Mary Ann Forsyth, presently residing at Bournemouth. The remaining third part to be invested for behoof of the poor people of Forres who are not on the roll of the parochial board of any parish.—Signed by me this sixth day of June Eighteen hundred and eighty-nine.— J. H. Gill.”

Gill left both heritable and moveable property. The heritable property was worth about £4000, but part of it was burdened with a heritable security amounting to £2000. The moveable property amounted to £1800. The heritable and moveable estate remaining for division after deduction of debts, &c., was expected to amount to about £3000, and one-third of that, viz., £1000, fell to be set aside to meet the bequest contained in the settlement for behoof of the poor of Forres.

Miss Eliza Murray, residing at Greenwood Cottage, Forres, and Mrs Forsyth, the beneficiaries under the will, residing at Bournemouth, were confirmed executricesdative on 25th July 1889.

Upon 20th October 1891 these parties presented a petition to the Second Division of the Court of Session to settle a scheme for the administration of the charitable bequest, and to grant power to such persons as might be appointed to administer the fund to make up a title by notarial instrument or otherwise to the share of the heritable estate falling to the poor of Forres, and to sell the same either by public roup or by private bargain.

The petition was served upon the Lord Advocate, the Governors of Jonathan Anderson Trust (a charitable institution in Forres), the minister and kirk-session of the parish of Forres, the Parochial Board of that parish, and Mr Gill, the deceased's next-of-kin.

The Governors of Jonathan Anderson's Trust lodged answers.

The trust-disposition and deed of settlement of Anderson provided—“I appoint the remainder of the foresaid feu-duty or ground annual to be paid annually to and among poor housekeepers in Forres of the description to be condescended upon by me in any note thereof which may be found lying by me after my death, and failing my leaving such subscribed note, I appoint the Provost, Magistrates, and Town Council of Forres to pay the same to and among such poor housekeepers of the town of Forres annually as they shall judge proper, but not to exceed £5 sterling yearly to any individual.”

This trust, which had been managed from the date of the foundation in 1804 by the Town Council, was now carried on by a scheme under the provisions of the Educational Endowments (Scotland) Act 1882, approved by Her Majesty in Council on 3rd May 1888, by which the administration handed over to a body composed of seven Governors, of whom three were elected by the Magistrates and Council of Forres, two by the School Board of the burgh of Forres, and one by each of the School Boards of Kinloss and Rufford.

The Governors were directed to apply the annual sum of £70 for the educational purposes of the scheme, and if there was any surplus income it was to be applied for the charitable purposes set forth in the trust-disposition and settlement of Jonathan Anderson. The Governors were

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also entitled to receive additional donations or endowments for the purposes of the scheme or for any special objects connected with the endowment which should not interfere with the due working of the provisions.

The Governors therefore contended that the fund in question ought to be handed over to them for these reasons—“(1) Because the deceased, when he framed his will, had in view the benefit of those who had been in receipt of doles from the charity managed by the respondents. (2) Because the respondents already administer a similar charitable fund, and are prepared to administer the fund now in question without additional cost. (3) Because, from their numbers and otherwise, the respondents are a more suitable body to administer the said fund than the Town Council. (4) Because the same reasons which, after full inquiry before a Royal Commission, induced transference of the administration of the charitable funds presently administered by the respondents from the Town Council in 1888, apply to the present case.”

The Town Council and Magistrates of the burgh of Forres also lodged answers. They averred that the main purposes of Mr Anderson's trust were (1) for assisting the education of poor children in the parishes of Forres, Rafford, and Kinloss; and (2) for the distribution annually among poor people in the burgh of Forres, not in receipt of parochial relief, of the residue of the fund; that during the time in which the fund had been administered by the Town Council a sum of about £67 had been distributed annually among the poor, but under the new scheme of 1888 the funds had been administered solely, or almost solely, for educational purposes; that Mr Gill had in contemplation the restoration of the fund previously distributed under the Anderson Trust among the poor, and that it was reasonable to assume that he would have approved of the administration of his fund by the same body which had administered the Anderson fund so long as there was anything to distribute among the poor of Forres.

At advising—