Scottish Court of Session Decisions

Mrs Margaret Baillie or Hay, who resided at Holmwood, Uddingston, died on 29th December 1898, leaving a trust-disposition and settlement, dated 9th March 1896, by which she assigned and disponed her whole means and estate to and in favour of William Jackson Andrew, solicitor in Coatbridge and another, as trustees for certain purposes.

The trust-disposition and settlement contained this clause:—“In the last place, I direct my trustees or trustee, on the death of the survivor of me and the said Margaret M'Donald,” (a servant of the testatrix to whom she had made certain bequests, including the life-rent of Holm-wood), “to apportion and pay over the free proceeds of the whole residue of my means and estate, after giving effect to the above provisions, to and amongst such societies or institutions of a benevolent or charitable nature in such proportions as he or they shall in their own discretion think proper, but excluding all societies or institutions either connected with the Roman Catholic body or under the control or management or even general management of those connected with that body.”

The trustees being advised that the validity of the above provision ought to be determined by the Court, raised an action of multiplepoinding in which the residue of the estate formed the fund in medio. Claims were lodged by the trustees and by Miss Jessie Baillie and others, the next-of-kin of the truster.

The trustees claimed primarily to be ranked and preferred to the whole fund in medio in order that the same might be administered by them in terms of the residuary clause of the trust-disposition and settlement. And they pleaded—“(1) Said bequest of residue being valid and falling to receive effect, the claimants are entitled to be ranked and preferred to the whole fund in medio in terms of their primary claim.”

The claimants, the next-of-kin, claimed to be ranked and preferred to such shares of the fund in medio as they were entitled to as heirs ab intestato of the truster.

On 14th November 1907 the Lord Ordinary ( Johnston) pronounced an interlocutor finding that the said bequest of residue was void from uncertainty.

Opinion.—“The late Mrs Hay of Holm-wood, Uddingston, directed her trustees to apportion and pay over the free portion of the residue of her estate ‘to or amongst such societies or institutions of a benevolent or charitable nature in such proportions’ as in their discretion they should think proper, but always to the exclusion of Roman Catholic societies or institutions. The validity of this bequest is challenged by the testator's next-of-kin, who maintain that it is void on the ground of uncertainty in respect that though ‘charitable’ has, since the case of Crichton in 1828, 3 W. & S. 329, been recognised as sufficiently descriptive of a class of objects or institutions, to receive effect in discretionary bequests of this nature, the alternative word ‘benevolent’ is not so descriptive, and has not been so recognised.

“The trustees, who support the bequest, did not, I think, go the length of maintaining that ‘benevolent’ and ‘charitable,’ taken by themselves as words in common use in the English language are identical in meaning.

But I think I may state their contention as embraced in these three propositions:—

(1st) That in the collocation of words used by the testatrix the disjunctive ‘or’ must be read as equivalent to the conjunctive ‘and.’

(2nd) That ‘benevolent’ is identical with ‘charitable,’ or at least is used by the testatrix as equivalent to ‘charitable,’ so that the use of both words is a mere redundancy or surplusage.

(3rd) That the law of Scotland shows such favour to charitable bequests that to give effect to the bequest it will read ‘benevolent or charitable’ as intended to express no more than charitable—in fact, appeal is made to the principle of benignant interpretation of charitable bequests.

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Taking these points in their order

(1st) It is true that the conjunctive ‘and’ is sometimes read as having the same effect as the disjunctive ‘or.’ I cannot better illustrate this construction than by comparing the two cases of Cobb's Trustees, 1894, 21 R. 638, and Williams v. Kershaw, 1835, 42 R.R. 269. In Cobb's case the words were ‘useful, benevolent, and charitable institutions.’ In Williams v. Kershaw they were ‘benevolent, charitable, and religious purposes.’ In the former case the three adjectives were capable in natural combination of qualifying the same institutions, and there was no call therefore to read the ‘and’ as otherwise than conjunctive. Whereas in the latter case the three qualifications were not naturally found combined in the same institutions, and therefore to give a reasonable interpretation to the adjectives in combination it was necessary to read the ‘and’ as distributive and not conjunctive, and that necessity is the only justification of the interpretation. See Lord Rutherfurd Clark in Cobb's case at p. 641. But where the distributive ‘or’ is used there can never be the similar necessity for interpreting it as conjunctive. If the qualifying adjectives are merely equivalents, it does not matter whether they are connected conjunctively or disjunctively. If they are not mere equivalents, but being distinctive in meaning are capable of alternative use, there is no necessity to construe the distributive ‘or’ in any other than its natural meaning, and every reason for construing it in that meaning. And this, I think, will apply, even though the adjectives disjunctively used have, in part, a common sense—that is, to a certain extent overlap.

I cannot therefore read ‘or’ as equivalent to ‘and.’ No instance was quoted to me in which this has been done.

Nor do I think it possible to accept the argument in an alternative form, viz.—that the terms ‘benevolent’ and ‘charitable’ are merely exegetical of one another. So to read them would be to go against a cardinal canon of interpretation of such documents. It would be to deny to each word its natural and ordinary meaning, without any compelling reason. Presumably when a testatrix says ‘benevolent’ she means benevolent, and when she says ‘or charitable’ she means something different from benevolent. Moreover, which word is exegetical of the other? It must be contended that it is ‘charitable’ which is exegetical of ‘benevolent’ as the latter comes first—as if the lady had said ‘benevolent’ and then caught herself up, seeing that she had used too wide a word, and added, by which I mean ‘charitable.’ I cannot think it possible to put such a gloss upon her words without finding an intention for her by my own surmise, and not from the words she uses.

(2nd) Is ‘benevolent’ equivalent to ‘charitable?’ I think not. I think it may be said that everything which is ‘charitable’ is ‘benevolent,’ as the less is included in the greater. But I do not think that everything ‘benevolent’ can be included in the term ‘charitable,’ whether that term be used in the more technical English sense or in the less technical Scottish sense. On the contrast between the two words I refer to Lord Bramwell's judgment in Pemsel's case [1891], A.C. 531.

I approach this question from the point of view expressed by Sir William Grant, M.R., in Morice v. Bishop of Durham, 7 R.R. 232, where he says—‘The question is not whether the trustee may not apply it upon purposes strictly charitable, but whether he is bound so to apply it.’ This has been repeatedly stated by other judges and cannot be controverted. If then ‘benevolent’ covers more than ‘charitable,’ though the trustees might confine themselves to what was strictly charitable, that would not support the bequest, if they need not so restrict themselves and might apply the funds committed to them to what is benevolent but not charitable. And if benevolent is not descriptive of a particular class of which the law can take cognisance, the bequest must, according to the now well-established rule, fail.

The term ‘benevolent’ has occurred in a number of cases in Scotland and England (1) by itself, (2) along with ‘charitable’ or other terms used conjunctively, and (3) along with charitable or other terms used disjunctively. Where used by itself and where used disjunctively it has been rejected as indefinite, but where used conjunctively it has been sustained as not vitiating the bequest, provided its colleague is sufficiently definite, on the ground that if a purpose is, for instance, charitable, and therefore in the eye of the law definite, it does not render it indefinite that it must be not only charitable but also benevolent— ca va sans dire, though the converse may not hold true.

But before referring to the cases, a word as to the applicability of English cases in this question. I shall, under the third head, have to consider the specialities of the English law with regard to charities. But I find nothing in it which precludes English authorities, on this particular aspect of the question, being received in Scotland. Both in England and in Scotland ‘charitable’ is accepted as in the eye of the law sufficiently descriptive of a. particular class of purposes to be definite. There may be a question whether the limits of the class are quite the same in the law of the two countries, and I think, notwithstanding a certain generality of statement on the subject sometimes found, that they are narrower in Scotland rather than the reverse. But I apprehend that the question, whether another descriptive term not ‘charitable’ is sufficiently definite or is too indefinite to be recognised, is the same question whether it arises in Scotland or in England, and I am therefore prepared to accept English decisions on that point, not as authorities indeed, but as guides which I should hesitate to discard.

(1) In James v. Allan, 17 R.R. 4, the word ‘benevolent’ was used by itself, and Sir William Grant, M.R., holding that

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‘though many charitable institutions are very properly called “benevolent,” it is impossible to say that every object of a man's benevolence is also an object of his charity,’ determined that as the property might, consistently with the will, be applied to other than strictly charitable purposes, the trust was too indefinite for the Court to execute, and could not receive effect. I acknowledge that by ‘charitable’ purposes he means those purposes which are specified ‘in the statute of Queen Elizabeth,’ or which have been held to be within the analogies of that statute, but, as already stated, I find these purposes at any rate no narrower than ‘charitable purposes’ as understood in Scotland.

In the preceding case of Morice v. Bishop of Durham, supra, where the expression used was ‘objects of benevolence and liberality,’ the same conclusion had been reached. Sir William Grant, M.R., points out, what is as true in Scotland as in England, that the general rule is that every trust must have a definite object, but that this doctrine does not hold good with regard to trusts for charity. ‘It is now settled,’ he says,‘upon authority which it is too late to controvert, that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the object,’ and the words might, since the case of Crichton, supra, have been used by a Scottish Judge. But then, he asks, ‘Is this a trust for charity? Do objects of liberality and benevolence mean the same as objects of charity?’ And these questions he answers in the negative.

There is a further passage in Lord Eldon's judgment in that case which has an important bearing on the present. ‘The principle upon which that trust’ (referring to Browne v. Yeall, 6 R.R. 78) ‘was ill declared is this: As it is a maxim that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control, so that the administration of it can be reviewed by the Court; or if the trustee dies the Court itself can execute the trust; a trust, therefore, which in case of maladministration could be reformed and a due administration directed; and unless the subjects and the objects can be ascertained upon principles familiar in other cases, it must be decided that the Court can neither reform maladministration nor direct a due administration. That is the principle of that case.’ Now, although the Court in Scotland has not developed its Chancery jurisdiction on such precise and perhaps technical lines as that in England, and although it has not been so ready to interfere in trust matters as the Court of Chancery does by way of suits for administration and otherwise—see Lewin on Trusts, chap. 24, sec. 2 (15) and (16), 11th ed., p. 753, and compare the Irish case of Hagan v. Duff, 23 L.R. Ir. 516—it does intervene in its own way to correct abuses, prevent diversion, and settle and alter schemes. And I conceive the principle enunciated by Lord Eldon is just as applicable in Scotland as in England, and that the reason why a trust for an indefinite purpose is refused effect in Scotland as in England is just because the Court could not control its execution if called upon.

(2) Again ‘benevolent’ and ‘charitable’ in conjunction have been sustained on the ground that the charitable bequest was not vitiated by the further qualification of ‘benevolent’—as in Hill v. Burns, 1826, 2 W. & S. 80; Millar v. Black's Trustees, 2 S. & M. 866; Cobb's Trustees, 1894, 21 R. 638; and in re Best (1904), Ch. 354; and compare in re Sutton, L.R. 28 Ch. Div. 464, where ‘charitable’ is qualified by ‘and deserving.’

With reference to the case of Cobb, I am bound to notice that Lord Trayner would appear to regard ‘benevolent’ and ‘charitable’ as synonymous. But I can hardly consider what he says as a judgment to that effect, but rather as the acceptance of an assumed admission. I say assumed, because I think the argument was misconceived, and that no such admission was made. It was admitted that, standing the authority of Hill v. Burns, supra, no objection could be maintained to the expression ‘benevolent’ and ‘charitable’ in conjunction. Such argument as could be submitted was based on the adjection of the word ‘useful,’ upon which necessarily the whole stress was laid in support of the contention that the ‘and’ should be read distributively.

(3) Where ‘benevolent’ has been connected by the distributive ‘or’ with ‘charitable,’ the effect has been held to be destructive of the definiteness of the trust purposes— Williams v. Kershaw, 1835, 42 R.R. 269; in re Jarman's estate, L.R. 8 Chancery Division 584; in re Riland's, 1881, W.N. 173.

In these cases the same conclusion of indefiniteness or failure to particularise the class intended to be benefited was reached which led to the judgments in the analogous cases of Ellis v. Selby, 43 R.R. 188, where the expression was ‘charitable or other purposes’; Duncan v. Blair, 3 Fr. 374 and 4 Fr. (H.L.) 1, where the expression was ‘charitable or public’; and Grimond's Trustees, 6 Fr. 285 and 7 Fr. (H.L.) 90, where the expression was ‘charitable or religious.’

“ Grimond's case is, I think, of special importance, as the last pronouncement of the House of Lords on the subject, and because the Lord Ordinary and the majority of the Inner House were in different ways prepared to give that restricted meaning to ‘religious’ which would have made it, in their opinion at least, as definite as ‘charitable,’ and which, had the judgment stood, would have justified such a restriction of ‘benevolent’ as would have made it synonymous with ‘charitable.’ My own opinion is that ‘benevolent’ is a word of too wide meaning to be descriptive of a Particular class of objects, and I find confirmation of this opinion in the English cases cited.

(3rd) Is there in Scotland such favour to charitable bequests that our Court will, to give effect to a testator's beneficent

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intention, read ‘charitable’ so wide as to be the equivalent of ‘benevolent,’ or so restrict ‘benevolent’ as to be the equivalent merely of ‘charitable.’

Much has been said of the difference of Scottish and English law in the use of the word ‘charitable,’ and it is maintained that in England the word has a narrow and technical, and in Scotland a wider and more liberal meaning. I admit that it has in England a technical meaning, but if not the same in result, I think it is wider rather than narrower than that which it has in Scotland.

In contrasting the law of England and Scotland I am unable to follow the reasoning of one of the learned Judges in Cobbs' case, supra, where he says that ‘nothing can illustrate more strongly the vital distinctions between the two systems than to contrast the English cases of Williams v. Kershaw, supra, and in re Jarman's Estate, supra, with the judgments of the House of Lords sitting as a Court of Appeal from Scotland in Hill v. Burns, supra, and Millar v. Black's Trustees, supra.’ I have endeavoured to trace this contrast without success. The different results arrived at in these cases by the Courts of the two countries depend upon no distinction between their two systems of jurisprudence, but merely on the fact that the English Courts were dealing with terms actually or constructively distributive, and the Scottish Courts with terms actually conjunctive. But for this fact there would, I am satisfied, have been no difference in the judgments.

In England the expression ‘charitable’ derives its meaning from the Act of Queen Elizabeth passed to provide a control over maladministration of charities. That Act has received from the Court a wide interpretative application, in the same manner as our triennial prescriptive Act has received, and it covers charitable purposes of the eleemosynary character, educational purposes, religious purposes, and certain public purposes such as supply of water to a locality, building of sea dykes, &c., but subject to this condition—that each and all of these purposes must be public and not private in their purview, an excellent example of which is the case of Cocks, L.R., 12 Eq. 574 (585). It is clear that some of these purposes would be benevolent but hardly charitable in any ordinary sense, and I think that there can be no doubt that trustees in Scotland with a discretionary power to apply funds to charitable purposes would be restrained from applying them to some of them.

In Scotland, on the other hand, there is no statutory foundation for the interpretation, and no statutory jurisdiction conferred on the Court. But I think much has been borrowed from England. Apart from decision it has often been stated from the Bench that ‘charitable’ is indefinite in itself, and but for favour to charity would never have been accepted as descriptive of a sufficiently particular class of objects. But two leading decisions made it a vox signata in Scotland, and thenceforth determined that it must be accepted as sufficiently particular.

In Hill v. Burns, 1826, 2 W. & S. 80, the main question at issue was whether a testator could invoke alienum arbitrium to any effect in the distribution of his estate. On a review of prior Scottish cases Lord Gifford deduced the conclusion that the law of Scotland was more liberal in the construction of charitable than of other bequests, and held that the above position had been accepted. He then sustained without further reasoning a bequest in favour of institutions for ‘charitable and benevolent purposes’ established or to be established in or near Glasgow.

In Crichton's case, 1828, 3 W. & S. 329, Lord Lyndhurst, after laying down the proposition that to admit of discretion being conferred on trustees the object of their discretion must be a particular class, decided that ‘charitable’ by itself must be accepted as sufficiently particular. And that has been the law of Scotland ever since. But in determining this he had no direct authority except Hill v. Burns, supra, and it is clear that he went a good deal beyond it, and I cannot help thinking was much influenced by his English Chancery experience.

But although Crichton's case is the rule of Scottish law, it does not determine what the limits of ‘charitable’ are, and it does not follow from that decision that the favour for charity which has induced the Court to accept ‘charitable’ as definitive of a sufficiently particular class of objects, will further induce the Court to give to ‘charitable’ a loose and vague meaning so as to cover anything which may be classed as benevolent.

This subject has been matter of discussion in two later cases—in Baird's Trustees, 15 R. 685, and Pemsel's case, L.R., 1891, A.C. 531. In the former case in Scotland the opinion of the Court was that ‘charitable’ must, in interpreting the sections of the Income-Tax Act which gives relief to charitable institutions, have the meaning which they conceived it to have in the class of cases with which I am dealing, viz., the restricted sense of eleemosynary or material relief to physical necessity.

In the latter case, where the same question under the income tax had arisen in England, opinions were expressed that too narrow a view had been taken by the Scottish Court in Baird's Trustees, supra, and that whatever the term ‘charitable’ might cover, if it required to be interpreted in applying a bequest such as that in the present case the statutory meaning of the expression was much wider than they had assumed. Perhaps the most general definition of the view of the majority of the Court, for Lord Halsbury (L. Ch.) and Lord Bramwell dissented, was that given by Lord Herschell, to the effect that charity included even in Scotland everything done in relief of human need, whether physical, educational, or religious.

It has yet to be determined in a proper case of the application of such a bequest in Scotland, as distinguished from a case under

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the Income Tax Acts, whether the view of the First Division in Baird's Trustees or that of the majority of the House of Lords in Pemsel's case is the correct view. But in no event is there any ground for saying that ‘charity’ and ‘charitable’ in Scotland can receive a wider signification than it has received in England, or than Lord Herschell's attempted definition in Pemsel's case, and that is, I think, and on the authorities I have cited, very far short of ‘benevolent.’

For these reasons I have come to the conclusion that I must hold the bequest void from uncertainty.”

The pursuers (real raisers) reclaimed, and argued—(1) In using the words “charitable or benevolent” the truster did not intend to draw a distinction between the two, or to indicate two classes of beneficiaries. The word “or” was not disjunctive; “charitable” and “benevolent” were exegetic. The two words were nearly if not quite synonymous— Income Tax Commissioners v. Pemsel, [1891] A.C. 51, disapproving, Baird's Trustees v. Lord Advocate, June 1, 1888, 15 R. 682, 25 S.L.R. 533; Allan's Executor v. Allans, March 17, 1908, 45 S.L.R. 579. Where these words were both attached to institutions, that supported the view that they were exegetic. They were thus equivalent to “charitable and benevolent,” and such a bequest was undoubtedly valid— Dundas v. Dundas, January 27, 1837, 15 S. 427; Hill v. Burns, 1826, 2 W. & S. 80; Millar v. Black, 1837, 2 S. & M'L. 866; Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506; Dick's Trustees v. Dick, 1907 S.C. 953, 44 S.L.R. 680. (2) Esto that the word “or” was disjunctive, “benevolent” was sufficiently definite, and was entitled to the same benignant construction as “charitable.” It was impossible so to distinguish “charitable” and “benevolent” as to hold that a bequest to charitable institutions was good and one to benevolent institutions void from uncertainty. The cases of Hill v. Burns, Millar v. Black, Cobb v. Cobb's Trustees, Dick's Trustees v. Dick ( cit.) negatived the view that “benevolent” was too indefinite, at all events where it occurred in connection with “charitable.” Further, in a bequest to a class of objects from which the trustees must select individuals, all that was required was that the description of the class be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator— Murdoch's Trustees v. Weir, February 6, 1908, 45 S.L.R. 335 ( per Lord Chancellor); Allan's Executor v. Allan ( cit.) ( per Lord Kinnear). If that criterion were applied to the present case it was impossible to hold that the bequest was void from uncertainty. The cases where bequests for charitable purposes had been held void from uncertainty were cases in which the words used in connection with “charitable” were wider and of more vague significance than benevolent— Blair v. Duncan ( Young's Trustee v. Young's Trustee), December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212; Grimond or Macintyre v. Grimond's Trustee, March 6, 1905, 7 F (HL) 90, 42 S.L.R. 466; Shaw's Trustees v. Esson's Trustees, November 2, 1905, 8 F. 52, 43 S.L.R. 21. The English decisions referred to by the Lord Ordinary did not affect the case, because in England the rules as to charitable bequests were different, owing to the technical meaning of “charitable,” based on the statute of Elizabeth— Morice v. Bishop of Durham, 1804, 9 Ves. 399, 10 Ves. 521; James v. Allan, 1817, 3 Merivale 17; Williams v. Kershaw, 1835, 5 C1. & Fin. 111., 22 R.R. 269; Cobb v. Cobb's Trustees, cit. ( per Lord Stormonth Darling, Ordinary); Blair v. Duncan, cit. ( per Lord Robertson).

Argued for the respondents (claimants)—The law in England and in Scotland was the same—that the testator must indicate a definite class of objects from which he desired his trustee to make a selection. Bequests for charitable purposes, it was true, received in both countries a benignant construction, and thus, though really indefinite, acquired an artificial definiteness by favour of the law. There was thus an onus on anyone seeking to uphold such a bequest as this to show that it was either definite or charitable. The word “or” was disjunctive, and “charitable” and “benevolent” were not exegetic of each other— Grimond or Macintyre v. Grimond's Trustees, cit.; Duncan v. Blair, cit. ( per Lord Moncreiff). The cases referred to by the reclaimers, where bequests for “charitable and benevolent” purposes had been sustained, had no application, because such bequests were construed as bequests for such benevolent purposes as were charitable, while here the trustee might exercise a choice between such institutions as are charitable and such as are benevolent. The reclaimers must therefore show that a bequest to benevolent institutions was either definite or charitable. In England it had been held to be neither— Williams v. Kershaw, cit.; in re Jarman's Estate, 1878, 8 Ch. Div. 584; in re Best, [1904] 2 Ch 354 (where a bequest to charitable and benevolent institutions was sustained, on the ground that the institutions must be both); Hunter v. Attorney-General, [1899] AC 309 ( per Lord Shand, at p. 323). In re Macduff, [1896] 2 Ch 451, a bequest to charitable or philanthropic institutions was held void, and philanthropic was certainly less vague than benevolent. The word “charitable,” in the technical sense of English law, was wider than “charitable” in the Scots sense, for it certainly included things which would not come within the definition according to Scots law. In Scotland there was no case where benevolent had been held to be definite except where it was linked by “and” to charitable, and thus limited. The bequest here was accordingly void from uncertainty.

At advising—