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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Phee's Trustees v. M'Phee and Others [1911] ScotLR 33 (07 November 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0033.html Cite as: [1911] SLR 33, [1911] ScotLR 33 |
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Page: 33↓
A direction to testamentary trustees to “pay and divide the sum of £250 sterling, free of legacy duty, among such religious and charitable institutions in Glasgow and neighbourhood as they may select, and in such proportions as they may think proper,” is not void from uncertainty.
On 20th January 1911 a Special Case was presented to the Court by Andrew Bolton and another, testamentary trustees of the late Hugh M'Phee, wine and spirit merchant, Eglinton Street, Glasgow ( first parties), and James M'Phee, Thistle Street, Glasgow, the testator's brother, for his own
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behoof and as tutor and administrator-in-law for his pupil children, and Isabella M'Phee or Kirkwood, the testator's sister, wife of and residing with Thomas Kirkwood, engineer, Glasgow, with the consent and concurrence of her husband ( second parties), to decide as to the validity of one of the directions in the trust-disposition and settlement of the said Hugh M'Phee. The direction in question was—“I direct and instruct my trustees to pay and divide the sum of £250 sterling, free of legacy duty, among such religious and charitable institutions in Glasgow and neighbourhood as they may select, and in such proportions as they may think proper.”
The Case stated—“7. The first parties maintain that they are entitled to select any institution or institutions in Glasgow and neighbourhood, each of which has for its object works of a combined religious and charitable character, and to pay over to such institution or institutions the said legacy of £250 in such proportions as they may think fit. 8. The second parties contend that the directions as to paying and dividing the said sum of £250 are too vague and indefinite to receive effect, and that the legacy is void in respect that the beneficiaries sought to be benefited cannot with reasonable certainty be ascertained. They accordingly maintain that the said sum becomes part of the residue of the testator's estate, and falls to be divided among them as residuary legatees.”
The questions of law were—“1. Are the testator's directions as to paying and dividing the foresaid sum of £250 sterling sufficiently definite to receive effect, and are the first parties entitled to pay and divide the same in terms of said directions? 2. Does the said sum of £250 sterling become part of the residue of the testator's estate, and fall to be divided among the second parties as residuary legatees?”
Argued for the first parties—If the bequest had been to charitable institutions only it would have been valid— Dick's Trustees v. Dick, 1908 S.C. (H.L.) 27, 45 S.L.R. 688. It was true that “charitable or religious” had been held invalid— M'Grouther's Trustees v. Lord Advocate, 1907, (C.H.) 15 S.L.T. 652; M'Intyre v. Grimond's Trustees, March 5, 1905, 7 F (HL) 90, 42 S.L.R. 466—but in the present case “and” was used instead of “or,” and therefore the bequest was valid— Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212, per Lord Davey. In other words, the proper reading of the legacy was “charitable institutions of a religious nature”— M'Intyre v. Grimond's Trustees, January 15, 1904, 6 F. 285, 41 S.L.R. 225, per Lord Trayner obiter; Smellie's Trustees v. Glasgow Royal Infirmary, 1905, (C.H.) 13 S.L.T. 450. In M'Conochie's Trustees v. M'Conochie, 1909 C. 1046, 46 S.L.R. 707, a bequest to “educational, charitable, and religious purposes” had been held void from uncertainty, but in the present case the word used was “institutions,” which was much more definite in meaning. [Lord Dundas referred to Weir v. Crum Brown ( Murdoch's Trustees v. Weir), 1908 SC (HL) 3, 45 S.L.R. 335, and Hay's Trustee v. Baillie, 1908 SC 1224, 45 S.L.R. 908].
Argued for the second parties—The testator's directions were too vague to receive effect. The full wording of the clause was important. The word “divide” meant that the sum was to be paid to two classes, and therefore “and” was to be read as “or”— Williams v. Kershaw, 1835, 5 Cl. and Fin. 111; M'Conochie's Trustees v. M'Conochie ( cit. sup.), per Lord Ardwall; Hay's Trustees v. Baillie ( cit. sup.), per Lord M'Laren; M'Intyre v. Grimond's Trustees ( cit. sup.), per Lord Moncreiff. In introducing the word “religious” there was introduced something which it was impossible to define. To sustain the bequest therefore was really to make a will for the testator.
If one approached the question simply as a matter of ordinary construction, and in total ignorance of the decided cases, I should say that the bequest is sufficiently specific, and one which the trustees would have no practical difficulty in carrying into effect, and I should regard it as meaning that they were to divide this not very large sum of money among such institutions of a religious and charitable character in Glasgow and the neighbourhood as they might select. But we have been referred, and quite properly, to a number of cases more or less similar to the present, and we must of course pronounce our judgment having regard to what has been already decided by the Court. It seems clear enough that a bequest to such “charitable” institutions as the trustees might select would be good. There is no dispute about that. The word “charitable” has an ascertained meaning in law, and such a bequest would be beyond question. On the other hand, if it had been to such “religious or charitable” institutions as the trustees might select, without any limitation as regards locality or otherwise, the bequest, I take it, must have been held bad on the authority of the case of M'Intyre v. Grimond's Trustees, 1904, 6 F. 285, revd. 1905, 7 F (HL) 90. In that case the House of Lords decided that owing to the very vague character of the word “religious” as used in the settlement, without any qualification as to locality or other aid to its understanding, it could not be given effect to; and as it was disjunctively used in connection with “charitable,” the whole bequest was bad. Here we have not “religious or
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The Court answered the first question in the affirmative and the second in the negative.
Counsel for the First Parties— J. A. M'Laren. Agent— John M. Rae, S.S.C.
Counsel for the Second Parties— Lippe. Agents— Erskine Dods & Rhind, S.S.C.