Scottish Court of Session Decisions

In December 1873 the s.s. “Celerity” of Dundee was wrecked, and the entire crew, which was mainly composed of natives of Dundee, and numbered twenty-one, lost their lives in the disaster. At a public meeeting held in Dundee on 24th December 1873 the following resolution was passed:—“That the meeting appoint the following gentlemen a committee for the purpose of receiving funds to relieve the families and dependants of those who were lost in the “Celerity,” with full powers to administer them according to their discretion, and in the event of a surplus to apply it to any similar object.” A committee was appointed, who received subscriptions, amounting in all to £1696, 10s. 11d., which were contributed almost exclusively from Dundee and district. They entered upon the management of the fund, and made allowances and other grants to all those whom they found to be in need of assistance. No formal trust-deed was executed, and the committee exercised their functions purely in virtue of the resolution passed at the public meeting, and administered the fund entirely “according to their discretion.”

In 1900 a petition was presented by the two surviving members of the committee craving the Court to settle a scheme for the administration of the balance of the funds still in their hands, which amounted to £1890, 4s. 3d.

The petitioners averred—“The beneficiaries originally numbered fifty or thereby, and for many years allowances and grants continued to be made to them. In course of time, however, their number and requirements and the consequent claims upon the fund gradually diminished, and during the past ten years in particular the charitable disbursements of the committee have not exceeded £4 in all. The petitioners are at present unaware of any case requiring contribution from the fund. Of the original subscriptions received, amounting, as already stated, to £1696, 10s. 11d., a sum of £1601, 16s. 10 1 2d. has been expended in relief, and this notwithstanding, the petitioners find themselves now in possession of the said sum of £1890, 4s. 3d. or thereby, this total being largely made up by material increase in the value of investments made by the committee. The petitioners consider that in the altered circumstances above set forth the future administration and management of the fund should be placed upon a new basis as nearly as may be akin to the original intention of the subscribers thereto, provision being of course made for any future emergent claims of persons at present entitled, directly or indirectly, to participate in its charitable distribution.” …

A scheme was proposed by the petitioners under which it was suggested that the fund should be handed over to a body of seven ex officio trustees, a majority of whom should constitute a quorum.

The proposed trust purposes were as follows:—“3. The free income of the said fund shall be applied primarily in relief of dependants of the crew of the s.s. ‘Celerity,’ if any such survive and be in necessitous circumstances; and if, or in so far as, not required for that purpose, the said income shall be applied in relief of persons belonging to and resident in Dundee and district, who may hereafter suffer loss or damage by shipwreck, storm, or other perils of the sea. Shipwrecked seamen and fishermen belonging to Dundee and district may receive assistance from the fund, either by pecuniary grant or by making good the loss of personal clothing or of property. The wives, families, and parents, and other dependants belonging to Dundee and district of persons who have lost their lives at sea, or by shipping casualties of any kind, may receive temporary relief or assistance by grants extending over a period of years; and the maintenance, upbringing, and education of the children of such deceased persons may be contributed to out of the fund. 6. Record of the income and expenditure of the fund, and of the beneficiaries thereof, and of meetings to be held from time to time as occasion may arise, shall be kept in such manner as the trustees may determine.”

No one appeared to oppose the petition.

The Court remitted to Mr Ewan Macpherson, Advocate, to report upon the petition and scheme.

The reporter confirmed the averments of the petitioners, and further stated—“The petitioners having assisted in the administration of the fund for twenty-seven years are not unnaturally desirous of resigning office, but are in doubt as to whether they can competently do so, and at the same time ensure that the purposes for which the fund was subscribed shall be carried out. I am informed that there is no institution in Dundee or the neighbourhood which can be said to fall even approximately under the term ‘similar object’ contained in the resolution passed at the public meeting in 1873. Accordingly, while that resolution gave very wide powers as to the application of a surplus, the petitioners do not see their way to apply it in any way without the sanction of the Court.” He also stated that the subscribers to the fund numbered over 350, the subscriptions varying in amount from one shilling to £500, that many of the subscriptions were given anonymously, and that it was evident that at the present time it would be very difficult if not impossible to trace and communicate with the majority of the subscribers. He reported generally in favour of the proposed scheme, but expressed some doubts as to the competency of the petition. With regard to this point, he made the following observations:—“It humbly appears to me, however, that there is some doubt as to whether the present application is one which your Lordships will entertain. It is to be noticed that the position of the committee was a somewhat anomalous one. … They seem to me to be rather in the position of the office-bearers of a voluntary association formed for a particular object, and instructed

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by the members of the association to carry it out. I think it is clear that it was anticipated that the funds collected would be expended once and for all upon that object. There might be a surplus, and if so, it would be given once and for all to some similar object. The existence of a continued trust to hold the funds for carrying on a charitable scheme seems to me to have been altogether outwith the purpose of the subscribers. But it humbly appears to me that the question whether the committee have in the past carried out the instructions of the subscribers, and whether by handing over the surplus to a new set of trustees to be administered as they propose they will now be carrying out these instructions, in the exercise of the discretion given to them, is one which very possibly your Lordships will not feel called upon to decide.” He referred to the case of The Edinburgh Young Women's Christian Institute, June 24, 1893, 20 B. 894.

With regard to the details of the proposed scheme, the reporter suggested, inter alia, that the words “The accounts of the fund shall be annually audited and” should be added at the beginning of article 6 of the proposed trust purposes.