Scottish Court of Session Decisions

Mrs Anne Adam or Shaw, residing at 31 Albyn Place, Aberdeen, widow of the late

Page: 22↓

Lachlan Campbell Shaw, who resided there, died on 20th December 1900, leaving a trust-disposition and deed of settlement dated 11th May 1889. By said trust-disposition and deed of settlement and codicils Mrs Shaw conveyed her whole means and estates, heritable and moveable, to trustees for the purposes therein specified. She thereby, inter alia, bequeathed a number of legacies and annuities, and with regard to the residue of her estates she, by said trust-disposition and deed of settlement, directed her trustees as follows :—“And with regard to the residue and remainder of my said estates, both heritable and moveable, I hereby direct my trustees as under, viz.—Subject to such further bequests as I may hereafter make by any codicil hereto, I hereby appoint that said residue shall be held and invested by my trustees in their own names as my trustees, and that the whole or such part of the capital and revenue, or of the revenue only, as they may think proper, shall be applied by them at their discretion from time to time towards such charitable, benevolent, or religious objects or purposes within the city of Aberdeen as they themselves shall institute or select: Declaring that in so far as said revenue shall not be expended by my trustees annually for the purposes or objects foresaid it shall be added by my trustees to the capital of the trust funds : Declaring further, that the power of my trustees of instituting or selecting said objects or purposes shall be absolute and without appeal or power of challenge at the instance of any society, association, or body, or others, who may allege that they have an interest in said residue or in the revenue thereof.”

Upon Mrs Shaw's death the question arose as to whether the directions for disposal of the residue were valid and effectual or void from uncertainty, and a special case was submitted for the opinion of the Court, the first parties to which were the trustees under Mrs Shaw's trust-disposition and deed of settlement, the second and third parties the legal representatives ab intestato of Mrs Shaw. The first parties contended that the directions for the disposal of residue were valid and effectual, the second and third parties that they were void from uncertainty, and neither valid nor effectual to dispose of the residue.

The questions of law submitted to the Court were—“1. Are the said directions in Mrs Shaw's trust-disposition and deed of settlement as to the disposal of the residue and remainder of her estates, heritable and moveable, valid and effectual? 2. Are the said directions void from uncertainty, and invalid and ineffectual to dispose of said residue and remainder of Mrs Shaw's estates, and does said residue and remainder form intestate succession of Mrs Shaw, falling to her representatives ab intestato?”

Argued for the first parties—The directions were not void from uncertainty. A testator was entitled to select a particular class or classes of individuals and objects for his bounty and then give to some particular individual or individuals a power after his death of appropriating his property to any particular individuals among that class—Lord Lyndhurst in Crichton v. Grierson, July 25, 1828, 3 W. & Sh. 329, at 338. The only question therefore was, had the testatrix here selected a class. She had. In Macintyre v. Grimond's Trustees, March 6, 1905, 42 S.L.R. 466, founded on as an adverse authority, there was no local limitation. Here there was, and that was a consideration of the greatest importance— Miller v. Black's Trustees, July 14, 1837, 2 Sh. & M'L. 866; Hill v. Burns, April 14, 1826, 2 W. & Sh. 80. Similar bequests for educational purposes had been held valid by the Court, and a bequest for charitable, benevolent, or religious objects with a local limitation was no vaguer than one for educational purposes with a similar limitation— Ferguson v. Marjoribanks, April 1, 1853, 15 D. 637; Andrews v. Ewart's Trustees, May 27, 1885, 12 R. 1001, 22 S.L.R. 660. It could not be said that the trustees here had a completely free hand, and that was the ratio of Grimond. It must be assumed that they would act reasonably.

Argued for the second and third parties—The directions were void. Grimond, in which all the authorities quoted above were considered, following Blair v. Duncan, December 17, 1901, 4 F. (H. L.) 1, 39 S.L.R. 212, settled the question. The words here were vaguer than in Grimond, “objects” or “purposes” being wider than “institutions.” The so-called local limit was really no limit, as it did not apply to the objects which might be selected, but only to their locus. Had the trustees been confined to objects and purposes already existing in Aberdeen it might have been different. As matters stood they were free to make a will for the testator, which was declared illegal in Grimond's case. In Brown's Trustees v. M'lntosh, May 26, 1905, 13 S.L.T. 72, the most recent case on the subject, Grimond, was followed.