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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Church of Scotland Ministers' Widows' Fund v. Swan and Others (Robb's Case) [1917] ScotLR 581 (17 July 1917) URL: http://www.bailii.org/scot/cases/ScotCS/1917/54SLR0581.html Cite as: [1917] ScotLR 581, [1917] SLR 581 |
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The Church of Scotland Ministers' Widows' Fund Act 1814, section 9, enacts “That when any parish in the Church of Scotland becomes vacant by the … translation … of an incumbent holding the pastoral cure and benefice of such parish, and that vacant stipend thereby arises subsequent to the crop and year 1813, such vacant stipend, in so far as it has heretofore been applicable by the patron to pious purposes, shall thenceforth and in all time to come be levied in manner hereinafter mentioned, and paid to the said general collector. …”
The Reverend Robert Paton left £300 to the Presbytery of Glasgow, “the interest to be added to the stipend of the minister of St David's Parish, Glasgow.” George Robb left £1200 to the kirk-session of the same church, “the free annual revenue … [to] be paid … to the minister of the church for the time being.” On 24th September 1914 the church became vacant by the translation of the incumbent and continued vacant till 13th April 1915. Stipends vest half-yearly at Whitsunday and Michaelmas (29th September). In a competition between the Ministers' Widows' Fund and the donees of the bequests, held that the half-year's income for the period following Whitsunday 1914 in the case of the Paton bequest fell as vacant stipend to the trustees of the Ministers' Widows' Fund, as the testator's intention was that the bequest should be treated as stipend, and ( dis. Lord Johnston) in the case of the Robb bequest did not fall to be treated as vacant stipend, as no such intention on the part of the testator could be inferred from the terms of the bequest.
The Church of Scotland Ministers' Widows' Fund Act 1814 (54 Geo. III, cap. clxix), section 9, is quoted supra in rubric.
The Trustees of the Church of Scotland Ministers' Widows' Fund incorporated by the Church of Scotland Ministers' Widows' Fund Act 1890 (53 and 54 Vict. cap. cxxiv), first parties, and the Reverend David Ness, M.A., and others as a committee appointed by the Presbytery of Glasgow to represent it, second parties, brought a Special Case for the determination of questions relating to the disposal of the income of a legacy left by the Reverend Robert Paton, D.D., during the vacancy of St David's (Ramshorn) Parish Church in Glasgow owing to the translation of the minister.
A similar case was brought by the first parties and the Reverend John A. Swan, B.D., and others as a committee of the Kirk-Session of St David's Parish Church, appointed by the Kirk-Session to represent it, second parties, for the determination of similar questions relating to a bequest by George Robb.
The cases were heard together.
Paton's Case.—The Reverend Robert Paton, D.D., left a will dated 4th July 1870 which provided, inter alia—“I bequeath to the Presbytery of Glasgow £300, the interest to be added to the stipend of the minister of St David's Parish, Glasgow.”
The Special Case set forth—“3. After the death of the said Robert Paton the said sum of £300 was, on or about 8th January 1879, paid by his trustees to the Presbytery of Glasgow. Since the last-mentioned date the said Presbytery of Glasgow have held the said sum, and collected the income thereof, which amounts to £12, 14s. per annum, and accrues to them at four terms in the year, Candlemas, Whitsunday, Lammas, and Martinmas, and paid the said income to the minister of said church for the time being, once a year in the month of February.… 5. On or about 24th September 1914 the said parish became vacant by the translation of the Reverend Ernest Sherwood Gunson to the parish of New Monkland, in the Presbytery of Hamilton, and continued vacant till 13th April 1915. Payment of a year's income of the said legacy was made to the said Rev. Ernest Sherwood Gunson in February 1914, and thereafter half a year's income was paid to him at the date of his vacating the benefice.”
The first parties' contention was “that the income of the legacy in question forms part of the stipend of the benefice in the sense of the Act 54 Geo. III, cap. 169, and that in respect that the benefice was vacant at the term of Michaelmas 1914, one half of a year's income, amounting to the sum of £6, 7s., is vacant stipend in the sense of section 9 of the Act 54 Geo. III, cap. 169, and is payable to the first parties for the purposes of the fund administered by them.”
The second parties' contention was “that said income is not vacant stipend in the sense of said Act, and is not payable to the first parties.”
The questions for the opinion of the Court included, inter alia—“3. In respect that the benefice in question was vacant at Michaelmas 1914, is one-half of a year's income of the said legacy payable to the first parties for the purposes of the Acts relating to the Church of Scotland Ministers' Widows' Fund?”
Robb's Case.—George Robb, sometime carting superintendent of the Caledonian Railway Company, left a trust-disposition and settlement which directed his trustees “to pay to the Kirk-Session of Ramshorn Church, Glasgow, the sum of One thousand two hundred pounds, the free annual reve
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nue of which shall be paid by the Kirk-Session to the minister of the church for the time being.” The Special Case set forth—“3. After the death of the said George Robb the said sum of £1200 was on or about 20th August 1909 paid by his trustees to the Kirk-Session of the said St David's (Ramshorn) Church (commonly known as the Ramshorn Church of Glasgow). Since the last-mentioned date the said Kirk-Session have held the said sum and collected the income thereof, which amounts to £42 per annum, and accrues to them at 30th June and 31st December annually, and paid the said income to the minister of the said church for the time being at 1st January and 1st July in each year by equal portions. … 5. On or about 24th September 1914 the said parish became vacant by the translation of the Rev. Ernest Sherwood Gunson to the parish of New Monkland in the presbytery of Hamilton, and remained vacant till 13th April 1915. At 1st January 1915 a proportion of the income of £21 accruing at 31st December 1914, corresponding to the period from 1st July to 24th September 1914, was paid by the Kirk-Session to the said Reverend Ernest Sherwood Gunson.”
The contentions of parties were similar to, and the questions of law were identical with, those in the Paton case.
Argued for the first parties—In the Paton Bequest the income of the fund was earmarked as stipend. There was no express bequest to the minister, and no provision for accumulation or application of the fund in any other way except as stipend. Further, the testator was a minister who presumably wished the fund when there was no minister in the cure to be treated in the same way as stipend. Accordingly the presumption was that the first parties being entitled to vacant stipend in the ordinary sense were also entitled to the income of this fund when the parish was vacant. In the Robb Bequest the income was not earmarked as stipend, but unless it fell to be treated as stipend when the cure was vacant it was undisposed of. In both cases the income was part of the permanent endowment of the church. Had the income been ordinary stipend payable out of teind during a vacancy those parties would have been entitled to it, but stipend was not limited to stipend paid out of teind. It included all the permanent annual fruits of the benefice—Duncan, Parochial Ecclesiastical Law, 1903 ed., pp. 230, 289, and 296. It might be derived from private mortifications such as the present— ibid. p. 298; Ersk. Inst., i, 5, 23. In a quoad sacra parish the vacant stipend went to the Widows' Fund— Grant v. Macintyre, 1849, 11 D. 1370. The stipend of a quoad sacra church derived from funds privately raised had been held when vacant to go to the Widows' Fund— Cheyne v. Cook, 1863, 1 Macph. 963; M'Lagan v. Brown, 1887, 14 R. 1083, 24 S.L.R. 759. “Stipend” and “benefice” were used as synonyms in the present connection—Act 1644, cap. 20. Stipend had been treated as equivalent to the “fruits of the benefice”— Gordon v. Earl of Kinnoull, 1845, 4 Bell's App. 126, per Lord Cottenham at p. 137. Where the stipend was derived from a parliamentary grant as in parliamentary churches it was held during a vacancy to go to the Widows' Fund as being a permanent endowment of the Church— Gordon v. Trustees of Ministers' Widows' Fund, 1836, 14 S. 509. Irvine v. Trustees of the Ministers' Widows' Fund, 1838, 16 S. 1024, was not a decision upon the nature of the stipend derived from such funds, but merely decided that the ministers in question did not fall within the class to which the Widows' Fund statutes applied. The same principles applied to burghal churches as to parliamentary churches, the permanent endowment being treated as stipend— Dundee Magistrates v. Nicol, 1829, 8 S. 66; Stirling Magistrates v. Gordon, 1837, 15 S. 657. As a matter of history the patron founding the benefice originally got the vacant stipend, but later he became bound to apply that to pious uses—Act 1685, cap. 18. If the second parties were right only part of the vacant stipend would be applied to pious uses. The rest would fall into the heritors' own hands. The first parties were entitled to half of a year's income of the funds in question. As regards glebes the rule messis sequitur sementem applied.
Argued for the second parties—“Vacant stipend” in the Act 54 Geo. III, cap. 169, sec. 9, meant stipend proper and not emoluments derived from private mortifications. The latter must be dealt with according to the testator's intention. Stipend was also applied to income derived from the permanent endowment of the benefice at the date of its erection—Duncan, Parochial Ecclesiastical Law, 1903 ed., p. 290. In a quoad sacra church the stipend was the annual proceeds of the permanent endowment of the church existing at the date of its erection—Division of Parishes (Scotland) Act 1844 (7 and 8 Vict. cap. 44), sec. 8. Income derived from private mortifications such as the present was regarded as a “supplementary provision”—Duncan, Parochial Ecclesiastical Law, p. 298. In all the cases the vacant stipend not derived from teind falling to the Widows' Fund had been limited to stipend derived from the original permanently fixed endowment of the church. A private mortification not forming part of the permanent original endowment of the church did not fall to the Widows' Fund during a vacancy— Cheyne v. Cook ( cit.) at p. 964, and per the Lord Ordinary (Jerviswoode) at p. 967. The dicta of the Lord Justice-Clerk (Inglis) at p. 970 had reference to stipend derived from the permanent endowment of the church at its erection. Gratuitously paid sums added to the stipend of the minister were not regarded as attached to the benefice— Cheyne v. Dundee Magistrates, 1866, 4 Macph. 1002, per Lord Justice-Clerk (Inglis) at p. 1005, 2 S.L.R. 157. A private bequest was not taken into consideration in fixing the amount of the stipend— Rainie v. Magistrates of Newton-on-Ayr, 1897, 24 R. 606, per Lord Stormonth Darling (Ordinary) at p. 609, 34 S.L.R. 447. Neither was the revenue derived from feuing the glebe— Minister v. Heritors of Kilmalcolm, 1875, 3 R. 32, 13 S.L.R. 16. Income derived
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from the glebe was not regarded aspart of the stipend—Ersk. Inst., i, 5, 14. The feu-duties derived from feus of the glebe were specially dealt with during a vacancy by statute—Glebe Land (Scotland) Act 1866 (29 and 30 Vict. cap. 71), sec. 15. The questions should be answered in the negative. At advising—
We have here to deal with, 1st, a bequest to the Presbytery of Glasgow of £300, “the interest to be added to the stipend of the Minister of St David's Parish, Glasgow” (commonly known as Ramshorn Parish, Glasgow), and 2nd, a bequest of £1200 to the Kirk Session of Ramshorn Church, Glasgow, “the free annual revenue of which shall be paid by the Kirk Session to the Minister of the Church for the time being.”
On 24th September 1914 the parish became vacant by the translation of its minister to the parish of New Monkland, and it remained vacant till 13th April 1915. As it was a case of vacancy by translation there was no claim to ann. So we have to determine simply whether the income of these bequests, both or either of them, is stipend of the benefice in question, in such sense that a half-year income thereof was at Michaelmas 1914 vacant stipend, and payable under the Ministers' Widows' Fund Act 1814 to the collector of the fund.
The law and practice of payment of ministers' stipends is fixed thus—The terms are Whitsunday and Michaelmas (29th September). Where a minister survives or retains the benefice till Whitsunday he is entitled to half the stipend, and if till Michaelmas to the other half. The rule, though derived from the idea of crop and year, and primarily applicable to stipend localled on teinds, has been extended to money stipends, such as occur in the case of quoad sacra parishes, &c.
The Ministers' Widows' Fund Act has been several times before the Court, and in the leading case of Cheyne v. Cook, 1863, 1 Macph. 963, it was decided on a very careful examination of the general statutes which had preceded in date that Act, that the term “stipend” as used in the section in question (section 9) was not confined to stipend proper, but covered the whole fruits of the benefice. The Lord Justice—Clerk (Inglis) bases the judgment of the Court on these considerations, viz., that prior to the Reformation the right of the patron during the vacancy was to possess the benefice; that the Statute of 1592, cap. 117, which enacted that should the Presbytery refuse to admit a qualified minister presented “it shall be lawful to the patron to retain the whole fruits of the benefice in his own hands,” was merely a re-enactment of the common law right; that the Act 1644, cap. 20, and subsequent Acts to the same effect, which direct the patron to apply vacant stipend to pious uses, though they do not use the expression “whole fruits of the benefice,” but speak of “vacant benefice and stipend,” of “vacant stipend,” &c., indicate clearly that they were intended to extend to the whole fruits of the benefice, whether in the form of stipend proper or not, and that in its use of the term “stipend” the Ministers' Widows' Fund Act must be interpreted accordingly. His Lordship adds (p. 970), “The provisions do not extend beyond the annual fruits of the benefice that take the shape of money, but they extend to all such fruits.”
In the case of Cheyne v. Cook ( cit.) the Ministers' Widows' Fund Act was held to apply to quoad sacra parishes where the stipend secured is purely a money stipend, in respect that they were proper benefices. Similarly in Magistrates of Dundee v. Nicol, 1829, 8 S. 66, and Magistrates of Stirling v. Gordon, 1837, 15 S. 657, it was applied to burghal parishes, in so far as the stipend payable by the magistrates was a fixed and permanent provision, and not a merely voluntary grant in supplement during a particular incumbency. Its application came up also in Irvine, 1838, 16 S. 1024, Grant v. Macintyre, 1849, 11 D. 1370, and M'Lagan v. Brown, 1887, 14 R. 1083, 25 S.L.R. 759. But I would only notice the following as having, I think, a close bearing on the present case. In Cheyne v. Magistrates of Dundee, 1866, 4 Macph. 1002, 2 S.L.R. 157, it having been found that there was in the hands of the magistrates of Dundee a mortification termed the “Hospital Fund,” which they were bound to apply, inter alia, in augmenting when necessary the stipends of the ministers of the town churches, the collector claimed a retrospective effect for the decision, so that a claim for a vacant stipend should have the advantage of an augmentation which the magistrates were under decree compelled to give, but which had not yet been adjusted when the vacancy occurred. The fund out of which it had been held that suitable augmentations ought to
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Are then these two sums here in question, one of which is expressly to be added to the stipend of the minister, the other of which is to be paid to the minister for the time being, any less fruits of the benefice than, say, the stipend of a quoad sacra minister, or one receiving in supplement a grant from the statutory small livings fund?
The question is in the first place one of intention, but not I think of intention pure and simple. The granters must be held to have had in view the incidents naturally attaching to their gift. They both give what produces an annual sum to augment the minister's stipend. The minister for the time being has a right to that sum in perpetuity. It is only qua minister of the parish that he has that right. And it appears to me that these annual sums are both annual fruits of the benefice, in the sense of the statute as it has been interpreted. I cannot myself draw any distinction between them. What is paid to the minister is added to his stipend, and, vice versa, what is added to his stipend is paid to the minister. And it is only to the minister for the time being—that is, as I understand, when the amount accrues due—that it can be paid. The granters must, I think, be held to have made their bequests with the intention that they should become part of the fruits of the benefice in time coming, and as such be subject to the incidents which attach to the fruits of the benefice, and one of these is that they pass as vacant stipend to the Widows' Fund during a vacancy. If not, where are they to go? The second parties in each of these cases carefully avoid touching this question; and I am not surprised, for they cannot retain them themselves for pious or any other uses, and the minister not yet presented has no more right to them than the minister who has vacated.
I think therefore, differing somewhat I am aware from your Lordships, that the last questions in each case should be answered in the affirmative. It is unnecessary to answer the first two.
In the case of the Paton Bequest there is, I think, little room for doubt, because the language of the bequest is “I bequeath to the Presbytery of Glasgow £300, the interest to be added to the stipend of the minister of St David's Parish, Glasgow.” The bequest there is of something which is stipend eo nomine, and it necessarily follows that the statutory provisions, particularly those set out in section 9 of the Act 54 Geo. III, cap. 169, apply. When the stipend became vacant the provisions in that section apply and payment must be made in accordance with its terms.
But when one turns to the language of the bequest in the case of the Robb Bequest, there the trustees are directed “to pay to the Kirk Session of Ramshorn Church, Glasgow, the sum of £1200, the free annual revenue of which shall be paid by the Kirk Session to the minister of the Church for the time being.” Now I do not think that a bequest in these terms admits of a hiatus. There is no failure of the beneficiary. The direction is “to pay to the minister of the Church for the time being,” and the construction I put upon a bequest in those terms is that the duty of the Kirk Session is to pay to the last minister down to the date when he terminated his connection with the parish, and then to pay to the incoming minister the income which commences to accrue from that date.
In the case of the Paton Bequest I think
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Different considerations apply to the Robb Bequest, because there the testator, having bequeathed the capital to the Kirk-Session of the Ramshorn Church, Glasgow, directed that the free annual revenue should be paid by the Kirk-Session to the minister of the church for the time being. That is a perfectly unambiguous direction, and it leaves no room for anyone except the minister to make a claim against the Kirk-Session for any portion of the revenue. In the event of there being two ministers entitled—as would happen in the event of the translation or death of a minister—then the natural division between the two beneficiaries would be in proportion to the period during which the stipend had accrued. But if there was a period of vacancy the language of the will is wide enough to give to a minister on his appointment a right not merely to the interest which would accrue after his appointment, but also to any income which had accrued prior to his appointment and which did not belong to his predecessor in office.
Accordingly treating this question as I do as a pure question of construction, I am of opinion that in the case of the Paton Bequest the third question of law ought to be answered in the affirmative, and that in the case of the Robb Bequest the third question of law ought to be answered in the negative. In each of these special cases the parties have put two preliminary questions, but I should say that these two questions do not require to be answered in either case.
The
The Court answered the third question of law in the Paton Bequest case in the affirmative, and the third question of law in the Robb Bequest case in the negative.
Counsel for the First Parties— Chree, K.C.— Hamilton. Agent— F. P. Milligan, W.S.
Counsel for the Second Parties— Anderson, K.C.— Leadbetter. Agents— Macpherson & Mackay, W. S.
