Scottish Court of Session Decisions

By his trust-disposition and settlement the deceased George M'Gregor conveyed his whole estate to the Reverend Robert Davidson, minister of the parish of St Cyrus, and others, as trustees. By the fifth purpose of the said trust-disposition the truster directed “that after payment of the above legacies the residue of my estate, if any, shall be disposed of at the discretion of my said trustees.”

After the other purposes of the trust were fulfilled, there remained a balance in the hands of the trustees of £511, 5s. 7d. They alleged that they had the verbal instructions of the granter to employ this residue as a charitable fund for behoof of the parishioners of the parish of St Cyrus, but in respect of questions raised by the heirs in mobilibus of the truster they brought a multiplepoinding in which the residue was the fund in medio.

The fund in medio was claimed by (1) the trustees, and (2) the heirs in mobilibus of the truster.

The latter pleaded—“The testator's direction as to the residue of his estate being null and void for uncertainty, the claimants

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are entitled, as two of the heirs in mobilibus of the testator, to be ranked and preferred to the said fund in terms of their claim.”

On 8th January the Lord Ordinary ranked and preferred the heirs in mobilibus in terms of their claim.

Opinion.—“The residuary clause in the trust-disposition of the late George M'Gregor which has raised the present competition is expressed in these words—‘The residue of my estate, if any, shall be disposed of at the discretion of my said trustees.’

The competition is between heirs of the truster in mobilibus and the trustees. The heirs in mobilibus claim five-sixths of the residue, and if their claim be affirmed the remaining one-sixth part will be payable to another of his heirs, who is said to be at present insane, and for whom no claim has as yet been lodged. This claim is made on the plea that the residuary bequest is void from uncertainty. The trustees, on the other hand, claim to hold and administer the residue ‘as a charitable fund to be applied at their discretion for behoof of the parishioners of the said parish of St Cyrus.’

The trustees have averred that the truster gave verbal instructions to the Reverend Dr Davidson, one of their number, on the subject, and they produce a statement by Dr Davidson as to these instructions. That statement thus becomes in this somewhat irregular manner the averment of the trustees on this point. It is as follows:—‘He always said that the parish would benefit from his will, and remembering his own early struggles, his wishes, so far as I could gather, lay in the higher education of one or more scholars belonging to the parish. When his will was made—which was done somewhat hurriedly—no purpose was specified, as he had not fixed on the precise form his bequest should take; but his intention … was that none of the relatives should receive any addition to their legacies, and whatever residue there might be was to be held by his trustees for behoof of the parish.’ I must take this statement as expressing all that could be proved about the truster's verbal instructions, and I think it is not an averment of verbal instructions at all, but only an averment as to Dr Davidson's impressions about the truster's wishes—impressions to which undoubtedly the trustees would be entitled to give weight if it ever became their duty to exercise the discretion committed to them; but it is not, I think, an averment of anything said by the truster which could limit the absolute discretion which the trustdeed confers on the trustees.

For the heirs in mobilibus it was further maintained that seeing that an absolute discretion was committed to the trustees, any averment about the truster's directions was quite beside the mark, since, if their discretion was absolute, it did not signify what the truster's verbally expressed directions were. Further, it was maintained that it was incompetent to allow a proof of or to give effect to the verbal instructions averred, because to do so would be tantamount to admitting parole proof of a verbal legacy—See Jarmyn on Wills, vol. i, 379. I think these arguments well founded, but it is unnecessary to proceed on them if it be true that there is no relevant averment of any instructions given by the truster.

The question therefore is, whether a bequest to trustees, which leaves the disposal of the sum bequeathed to their absolute and unlimited discretion, is a valid bequest effectual against the claim of the heirs? I am of opinion that it is not, and that the direction as to the residue is void from uncertainty.

I do not think it safe in this question to rely on English decisions, since it is not, I suppose, doubtful that our Courts might sustain bequests which the English Courts would reject as incapable from uncertainty of execution by the Court. That is not a criterion of the validity of a testament which our Courts apply.

I am aware of only one case in our Courts in which a trust-deed has been held void from uncertainty. In Low's Trustees v. Macdonald, June 21, 1873, 11 Macph. 744, bequests of £1000 to charities in Glasgow and £1000 to charities in Aberdeen were held void from uncertainty, but in that case there was no appointment of trustees. If there had been, the judgment would, I rather suppose, have been different— Hill v. Burns, 1826, 2 W. & S. 80; Miller v. Black's Trustees, July 14, 1837, 2 S. & M'L. 866; Kelland v. Douglas, November 28, 1863, 2 Macph. 150, were cases of trusts for charities to be selected by trustees. These were sustained. In Crichton v. Jameson, 1828, 3 W. & S. 329, a bequest to such of a testator's friends or relatives as might be pointed out by his widow or trustees was held good. In M'Laren v. Henderson's Trustees, February 24,1880, 7 R. 601, a trust for the advancement of the science of phrenology was sustained. In Bobbie's Judicial Factor, 1895, 20 R. 358, a trust for undefined charitable purposes was held to fail, but that was because the trustee directed to carry it out had died. In Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, a trust-deed for objects which may have gone beyond charitable objects was sustained generally. I think that a provision in a trust-deed will not fail if the truster points out as the recipients of the bequest a class of objects, and if he appoints trustees to carry out the trust, and if they accept. In these later cases it seems to have been assumed that a trust-deed which points no object, but leaves the disposal of the estate absolutely to the discretion of trustees, will be ineffectual. From the report of Hill v. Burns it appears that Lord Balgray was of opinion that such a bequest would be good; and in Crichton v. Grierson the Lord Chancellor carefully reserves his opinion on the question.

The point appears, however, to have been decided in Sutherland v. Sutherland's Trustees, July 6, 1892, 20 R. 925. But the report is unsatisfactory. In that case the clause in reference to the residue of the estate was—‘I leave and bequeath sums to be disposed of by my said trustees in such

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manner as they may think proper, subject to such instructions and directions as I may hereafter make.’ He left no instructions. It was decided that the will was ineffectual either to give the trustees a proprietary right in the residue or to impose on them a trust in regard to it. No reasons were given for the judgment, these having been apparently expressed in the course of the argument, but unfortunately they have not been reported. It is, however, a case in point, and the only case in our books definitely, so far as I know, deciding the question.”