Scottish Court of Session Decisions

At advising on 13th July 1954,—

LORD CARMONT .—The question in this special case is whether a bequest of three-tenths of the residue of the testator's estate is void from uncertainty. The testator has named certain classes among which his trustees are to select recipients of his benefaction. There is no doubt but that it is permissible in law for a testator to entrust his trustees with such a selection. Each of the classes, however, among which the trustees are empowered to select must be sufficiently described, and the parties are agreed in the present case that an inadequate definition of a single class will vitiate the whole of the bequest of the three-tenths of the residue. The classes, as to which no question of sufficiency of description arises, vary from former employees of the testator's business firm, hospitals, certain Presbyterian and Scandinavian churches, charitable war associations, to the directors of a zoological park for the benefit of the park.

But it is in regard to the first of the so-called classes named by the testator that the question as to sufficiency arises. He directs that the said share of residue "shall be disposed of by my trustees among any poor relations, friends or acquaintances of mine." The problem for the trustees, twenty years after the death of the testator and following the death of the liferenting widow, is whether the classes named in this branch of the bequest, "poor relations, friends or acquaintances of mine," are all sufficiently described classes. I incline to think that the adjective "poor" must be applied not only to "relations," to which it is directly prefixed, but also to the word "friends" and to the word "acquaintances," and it seems plain that the words "of mine," although following the word "acquaintances," apply also to "relations" and "friends." Although I am inclined to regard the class "poor relations" as a social description and stated relatively and as a matter of degree when used by a very wealthy man, and not a term necessarily connoting charity and so entitling the words to a benignant construction, nevertheless the class is, on the authorities, one of sufficient definition. The class is composed of traceable family connections who are in need of financial help. I refer to the opinions given in the cases of Crichton v. Grierson, Playfair's Trustees and M'Cormack v. Barber .

When I turn to the description "[poor] friends [of mine]," I have much more difficulty in thinking that the class is sufficiently described, but I do not require to dwell on this branch of the bequest because of the view I have reached in regard to the next description of possible beneficiaries, "[poor] acquaintances of mine." In my opinion, this is not a sufficient description of a class within which the trustees are to select. If there can be a reasonable doubt as to who are comprehended within the so-called description, the Courts will treat the bequest as void—see Weir v. Crum Brown . I find myself quite unable to suggest any reasonably precise bounds to "acquaintanceship." In the first place, it is, in the scheme of the will, a different body of persons from "friends," for the words are separated by the disjunctive "or." If less than "kin" and "friend," a little more than what? Someone worth a nod from the: testator and that given perhaps so repeatedly as to make up for even anonymity in the testator's mind and outlook? One hears mention frequently of "business acquaintances," which seems to contain a connotation exclusive of "social acquaintance," and that although the business acquaintance may be on terms which are all but intimate. Looking back on many cases falling within one's own experience, those who became friends often passed through what might be called an apprenticeship of acquaintanceship, vague in time and nature. I do not think that these normal difficulties of definition are removed by considering the class as one embracing only "needy acquaintances," for the limited information one has about many who can be styled acquaintances often does not contain information about their financial position, although I must concede that there are certain acquaintances who leave one in no doubt on that matter. Turning to the qualification, "of mine," attached to the word "acquaintances," I do not find in it anything helpful in making what seems to me art imprecise term more precise. It suggests that the testator was seeking to exclude certain persons who might claim acquaintanceship with him which he, on his side, would not have been prepared to recognise. But how, in the absence of the testator, is one to put bounds in the "acquaintance class" in this way?

It was suggested in the course of the case that the trustees had the means of testing an application by X or Y to partake of the testator's bounty and that they need not admit to participation any one who did not satisfy them that he fell within the description. To my mind, that is a wrong approach to the question as to whether the class itself is sufficiently described by the testator and so provides a reasonably clear guide for the trustees. Even with a sufficiently described class trustees may have to investigate whether X or Y is qualified for admission to it. In my opinion, the question for our decision is whether or not the testator has described the class he means to benefit with sufficient accuracy to enable a reasonable man to know who the persons are that he meant to benefit, leaving it only to the trustees to select among those who form that class the particular recipients of his bounty.

In my opinion, the description "acquaintances of mine" is not a sufficiently clear description of a class, and, if this one branch of the bequest is ineffective, the whole gift of the three-tenths must be held to be void from uncertainty.

I move your Lordships to answer the first question put to us in the affirmative, with the result that the second question falls.

LORD RUSSELL .—The question for decision is whether the bequest of a three-tenth share of the residue of the testator's estate, as provided by him in his will, is or is not void from uncertainty. The general principles by reference to which such a question falls to be determined are not in doubt. In a mortis causa disposition of property a testator may competently select particular classes of individuals and objects, leaving to an individual or a body of individuals the power after his death to select out of those classes the particular persons or objects to whom his bounty is to be applied. If the classes within which the power of selection is to be exercised are sufficiently identified, the bequest will be valid. If one of the classes is insufficiently identified, the uncertainty so arising invalidates the whole bequest.

Among the various classes and objects selected by the testator in the bequest to be considered, doubt as to the sufficiency of identification arises only in respect of the one class described by him as "any poor relations, friends or acquaintances of mine." In construing that phrase I consider that the natural reading is to regard the words "any poor … of mine" as qualifying each of the three categories to which they are attached; and that by the three categories so described the testator intended to designate "any of my poor relations," "any of my poor friends," or "any of my poor acquaintances." The word "poor" in that context may reasonably be regarded, in the mind of a Scottish testator, as descriptive of one who is needy and has few material possessions. In that view I am of opinion that the word "relations" is a sufficiently identifiable category, embracing all who can show a traceable relationship to the testator and not merely his next of kin—see, e.g., M'Cormack—and who are needy.

The categories of "friends or acquaintances" appear to me to give rise to same difficulty. Having made provision for the category of; relatives, the testator apparently intended his trustees' power of selection to embrace also needy persons who, in a descending scale of personal, social or business association, were regarded by him during his life as being (a) on friendly terms, or (b) on something less than friendly terms, down to, perhaps, a mere nodding acquaintanceship. It is now over twenty years since the testator's death. Although he made careful provision for a succession of trustees qualified by family relationship, and these constitute the majority of the now acting trustees, it is plain that, however great their difficulty might be in exercising now their power of selection among members of these two categories, the question still remains—Is the Court able to affirm that each of these two categories is sufficiently defined and identified by the language used by the testator? The two categories are not within the type of bequests which, being charitable, may properly be given a benignant construction by the Court. By the words "poor friends of mine" the testator intended, in my opinion, to describe needy persons to whom he was well-disposed and with whom hewas on good terms—a definition which is suggestive of a subjective rather than an objective outlook. After some hesitation I have come to the conclusion that the category of "poor friends of mine" may pass muster as a sufficiently identified group of individuals, precise enough to avoid being invalidated by uncertainty. The last of the three categories—"poor acquaintances of mine"—seems to me, however, to be too vague and lacking in precision to merit validity. Can the Court reasonably affirm that such a description prescribes identifiable limits sufficient for enabling a reasonable man to know who are the persons so described? A needy "acquaintance of mine" may appear to denote an individual whose existence I may acknowledge as occupying a position closer to me in association than a mere nodding recognition and less close than personal association on terms of friendship. Such a category seems to involve a subjective outlook and is not capable of being identified and determined by a purely objective standard. Although the question for decision is to some extent one of degree, I am of opinion that quoad this third category the field of selection presents so much uncertainty that it would be impossible for the trustees to determine from which individuals their power of selection was to be exercised. I accordingly agree with your Lordships in holding that, inasmuch as this third category is void from uncertainty, the bequest of the three-tenth share of residue fails and the questions fall to be answered in the manner proposed.

LORD PRESIDENT (Lord Cooper of Culross).—I agree.

The residue clause falls into two chapters. In the first chapter, shares of residue amounting in the aggregate to seven-tenths are bequeathed in specified proportions to five specified objects, and the trustees are given no discretion in determining either the amount or the destination of each of these bequests. In the second chapter, which affects the remaining three-tenths, the testator confers upon his trustees what he describes as "an absolute discretion." He adds the words:—

"Unless otherwise directed or instructed by any valid writing under my hand"

; but, as he left no such direction or instruction, the discretion remains "absolute," and it is a discretion unlimited as to the time of its exercise or the amount of the benefits or the choice of recipients, provided only that the recipients are chosen from one or more of a series of classes described by the testator. In the description of these classes the word "or" occurs on nine occasions, and the words "or to" on four occasions. If we take the words "or to" as marking the dividing lines, there are five separate classes (or rather four classes and one specific beneficiary), and it is possible so to read the clause as to produce several more. In any event, I cannot read the clause except disjunctively, entitling the trustees, if so disposed, to give the whole three-tenths to any beneficiary or beneficiaries selected from any one of the alternative groups, or to the Scottish Zoological Park. It follows that the validity of the direction as a whole must be tested on the principle that the strength of a chain is its weakest link, and that, if one of the groups is not adequately defined, the whole bequest must fall. This was conceded, and the argument was properly concentrated upon the weakest link, which is found in the direction that the three-tenths are to be disposed of "among any poor relations, friends or acquaintances of mine, or former employees of my firm of Christian Salvesen and Company, or their wives"; and in particular upon the "poor … acquaintances of mine."

According to Scots law the mere introduction of the adjective "poor" as a qualification of "relations, friends or acquaintances of mine" will not suffice to impart to this bequest the special qualities and privileges of a trust for charitable uses. It remains a private trust; and I can give no further or other effect to the word "poor" than a narrowing of the class by a requirement that its members should be in need of financial assistance. The dominant determining factor is not that the beneficiaries should be a section of the "poor" in the common and now obsolescent sense of that expression, but that they should answer the description of being connected with the testator as relations, friends, acquaintances or former employees or the wives of such employees. Even in England, where the law of charities is different, I gather from the judgment of Lord Greene in Compton that the old authorities on "poor relations," such as Isaac v. de Friez, are now regarded as "anomalous" and out of touch with the developed English law of charities. We are therefore under no duty in this case to apply a benignant interpretation designed to save at all costs a true charitable intention, for Isaac v. de Friez and the other English cases are no part of Scots law.

Passing to a closer examination of the part of the clause which was the subject of attack, I consider that the term "relations" creates no difficulty if understood in the sense of "traceable relations" and not all the descendants of Adam—cf.M'Cormack—and the term "friends" when conjoined with "relations" has been held to pass muster, where the term "friends" can be read as a virtual synonym for "relations"—M'Cormack. It is not there that the real difficulty arises but in the immediately succeeding alternative of "acquaintances of mine." The phrase "relations, friends or acquaintances of mine" plainly indicates a decrescendo in intimacy of the association; and in such a collocation "acquaintance" seems to connote something more than bare recognition but falling short of the intimacy of friendship and still further short of ties of relationship by blood or affinity—a little less than kin and less than kind. Acquaintance is a bilateral relationship which is often unsuccessfully claimed; and, when the testator refers to acquaintances "of mine," I think that he must have intended to confine the term to persons with whom he would have acknowledged acquaintance, and (though this is not essential to the argument) to such acquaintances as he would have been willing to help in case of need. But the point remains that the number of the "acquaintances" of nearly every person (especially of such a well-known business man as the testator) is legion, and that in every normal ease even a man's nearest and dearest cannot know the range of his acquaintances and cannot divide mankind into those who are and those who are not acquaintances of his. The truth is that the test is essentially subjective to the person in question and not impersonal and objective—cf. Evershed, J., in In re Tree. When the person in question is dead (and in this instance the testator has been dead for twenty years and must have known that his residue clause might only come into operation after such an interval), the difficulty in identifying his acquaintances as a class is obviously increased to the point of impossibility.

It is nothing to the point to maintain that in this ease the trustees, as men of common sense, could doubtless discover a person or persons who satisfied the description of being "poor acquaintances of" the testator, for that is not the test—Lord Dundas in Campbell's Trustees, at p. 300, approved in the House of Lords. The question is whether the class from which the trustees are required to select has been delimited with adequate certainty and precision. Being of opinion that it has not and that the testator has in effect left the trustees to make his will for him, I would answer the questions as your Lordship proposes.