Scottish Court of Session Decisions

The Right Honourable Charlotte Scott Viscountess Ossington, relict of the Right Honourable John Evelyn Denison, Viscount Ossington, by deed of trust dated 8th April 1885, on the narrative that she had erected a building to be used as a coffee tavern, and provided the necessary funds for carrying it on, nominated certain trustees, including “the chairman of the Parochial Board of the parish of Kilmarnock, and his successor in office for the time being, so long as such office should exist,” and conveyed to them the subjects in trust.

The Local Government (Scotland) 1894 (57 and 58 Vict. c. 58), enacts, sec. 21—“On and after the fifteenth day of May in the year One thousand eight hundred and ninety-five, all enactments regulating the constitution and election of parochial boards shall be repealed, and the parochial board of any parish shall continue to hold office only until the said day, and no longer; and on and after such day every reference in any Act of Parliament, scheme, deed, or instrument to a parochial board constituted under the law in force at the passing of this Act

Page: 652↓

shall be read and construed as referring to a parish council constituted under this Act.” Section 22—“A parish council shall, subject to the provisions of this Act, come in place of a parochial board, and shall be deemed to be a continuance there of; and a parish council shall have and may exercise all the powers and duties, and shall be subject to all the liabilities of a parochial board, and all the provisions, of any Act of Parliament in force at the passing of this Act relating to or dealing with the powers and duties of parochial boards, and the appointment, powers, and duties of their officers, in so far as not inconsistent with this Act shall subsist and have effect.”

After the passing of this Act and the election of a Parish Council for the parish of Kilmarnock, the chairman of the Parochial Board, whose office then expired, ceased to act as a trustee, but the chairman of the Parish Council of Kilmarnock claimed to act in his place as a trustee ex officio under the deed of trust. The question having arisen as to his right to do so, the present case was presented to the Court.

The parties to the case were—(1) The Parish Council of Kilmarnock; and (2) The trustees under the deed of trust.

The first parties maintained that, as the successor in office of the chairman of the Parochial Board, the chairman of the Parish Council had come in place of the chairman of the Parochial Board, and was entitled to act as a trustee ex officio under the deed of trust.

The second parties maintained that the chairman of the Parish Council was not entitled to act as one of the trustees; that the trust-deed provided that the chairman of the Parochial Board of the parish of Kilmarnock for the time being was to be one of the trustees only so long as such board should exist; and that this board has ceased to exist under the express enactment of the “Local Government (Scotland) Act 1894,” section 21. The second parties further maintained that although this Act provided that the Parish Council should come in place of the Parochial Board, and should be deemed to be a continuance thereof, the powers and duties transferred to the new body did not include those exercised by an individual officer of the board as ex officio trustee in an independent trust.

The question of law for the opinion of the Court was—“Whether the chairman of the said Parish Council of the Parish of Kilmarnock is entitled ex officio to act as a trustee under the said deed of trust.”

Argued for the first parties—The word “deed” had been inserted in section 21 to meet the case of private trusts such as this. If the second parties' argument were sound, no private trust could be brought under the provisions of the Act, and the words “deed or instrument” would not receive effect. It was hypercritical to distinguish between “parochial board” and “chairman of parochial board.” The trustees' object was that so long as there existed a body having charge of parochial affairs, the chairman of that body should be a trustee. Under section 22 the parish council was to be a continuance of the parochial board, and under this section the chairman of the parish council was entitled to hold any office which had formerly been held by the chairman of the parochial board.

Argued for the second parties—A truster's intention was entitled to receive effect unless it had been clearly overruled by the Legislature. The truster here had provided that the chairman of the Parochial Board should be a trustee only “so long as such board should exist.” There was no similar limitation in the nominations of the other ex officio trustees. The only possible explanation was, that as she died in 1889, she foresaw some such change as had taken place, and desired that if the parochial board ceased to exist as then constituted, the chairman of any differently elected body which succeeded it should not be a trustee. The truster had taken the very precaution which was desiderated by the Lord Ordinary in Incorporated Trades of Edinburgh v. Governors of Heriot's Hospital, June 3, 1836, 14 S. 873. The intention of the Legislature to override the intention of the truster was not clear. The statute provided (sec. 21) that “parochial board” should be read as “parish council,” but not that “chairman of parochial board” should be read as “chairman of parish council.” And so section 22 provided that the parish council might exercise all the powers and duties of the parochial board, but not that the chairman of the one should succeed to any position formerly held by the chairman of the other.

At advising—