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Scottish Court of Session Decisions
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] ScotLR 33, [1911] SLR 33

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SCOTTISH_SLR_Court_of_Session

Page: 33↓

Court of Session Inner House Extra Division.

Tuesday, November 7. 1911.

49 SLR 33

M'Phee's Trustees

v.

M'Phee and Others.

Subject_1Succession
Subject_2Trust
Subject_3Uncertainty
Subject_4Religious and Charitable Institutions.
Facts:

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.

Headnote:

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.

 Judgment:

Lord Dundas—The question raised in this Special Case is a short one, and, speaking for myself, I do not find it to be attended with serious difficulty. We are asked to construe a clause in a settlement whereby the testator directs his 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 question we have to decide is whether that bequest is void from uncertainty or whether it is sufficiently definite to receive legal effect.

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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charitable” but “religious and charitable” institutions, and we have the further feature that the field is not the whole world but is confined to Glasgow and the neighbourhood. As I have said, prima facie I should hold that the words mean institutions of a religious and charitable character, and that there is no division into two classes, as distinct from one another, of religious institutions and charitable institutions. We were referred to dicta in decided cases which seem to show that the phrase “religious and charitable” stands, as one would have thought, in a better position than “religious or charitable.” Lord Davey in the case of Blair v. Duncan ( 1901, 4 F. (H.L.) 1) thought that a bequest to “charitable and public purposes” might have been quite good, whereas one to “charitable or public purposes” was, in his Lordship's opinion and in that of the House, invalid. In the same way Lord Trayner expressed an opinion in the case of Grimond (and the weight of his dictum is not affected by the fact that the judgment of the Court of Session was reversed on appeal) that “if the trust-deed had said ‘charitable and religious societies’ there would have been no question that the bequest was valid.” We must also keep in view that in the present case the “religious and charitable institutions” are expressly confined to a very definite neighbourhood, and I think that is a circumstance of considerable weight in the matter. We were referred to a decision of my own in the Outer House in Smellie's Trustees v. Glasgow Royal Infirmary ( 1905, 13 S.L.T. 450), where I sustained a bequest to “other benevolent and religious societies in Glasgow and the West of Scotland.” I see no reason to differ from what I then said as to the effect and weight of such limiting words. The case most pressed upon us by counsel for the second parties was that of M'Conochie's Trustees v. M'Conochie ( 1909 SC 1046), in the Second Division, where the words used were “educational, charitable, and religious purposes within the city of Aberdeen.” Every case must be decided on its own language, and I am far from saying that I would have differed from the decision in M'Conochie's Trustees. But what I think turned the scale, certainly in the opinion of Lord Low, was that the word used was “purposes” and not “institutions.” That is the ground of Lord Low's opinion, and I think the circumstance must necessarily have affected the minds of the other learned Judges who decided that case. There are many other cases bearing more or less on the matter. The First Division alone have quite recently decided three, viz., Hay's Trustees v. Baillie ( 1908 SC 1224), Mackinnon's Trustees v. Mackinnon ( 1909 S.C. 1041), and Paterson's Trustees v. Paterson ( 1909 S.C. 485), but I do not think any good purpose would be served in discussing them in detail; the cases are merely illustrations of the way in which the Court will approach a question like the present. In Murdoch's Trustees v. Weir and Others ( 1908 SC (HL) 3) the present Lord Chancellor put the rule in this way—“All that can be required is that the description of the class to be benefited shall be sufficiently certain to enable a man of common sense to carry out the expressed wishes of the testator.” And in the subsequent case of Allan's Executor v. Allan ( 1908, S.C. 807), at p. 814, Lord Kinnear, having quoted these words of Lord Loreburn, says—“That is, therefore, the rule which is held to be established by Crichton v. Grierson ( 3 W. & S. 329) and the subsequent cases, and the question to be put in each particular case is whether the description of the class to be benefited is sufficiently exact to enable an executor of common sense to carry out the expressed wishes of the testator.” Applying this criterion I think only one answer can be given to the question before us, because I cannot suppose that trustees of common sense would have any difficulty in carrying out the directions which this testator has expressed. The Court, I take it, is always more inclined to sustain than to destroy a testament. I think there is ample ground, without in any way trenching upon decided cases, for upholding this bequest. I accordingly propose to your Lordships that the first question should be answered in the affirmative, and the second in the negative.

Lord Mackenzie—I concur. I should only add, with reference to the argument which was first stated by Mr Lippe, that I am unable to give the effect which he desired to the word “divide.” According to that argument the word “divide” was said to compel us to read the word “and” coming between “religious” and “charitable” as disjunctive and not conjunctive. I am unable to assent to that view. It appears to me the intention of the testator was that the object of his benefit was to be institutions in Glasgow and neighbourhood of which it could be predicated that they were both religious and charitable, and that the selection of the particular institutions and the proportion that each institution was to get was left to his trustees. So construing the expression “religious and charitable institutions,” I entirely agree with the opinion of Lord Dundas.

Lord Kinnear concurred.

The Court answered the first question in the affirmative and the second in the negative.

 Counsel:

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.

 1911

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URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0033.html