Scottish Court of Session Decisions

Lord Salvesen.—[In his Lordship's absence his opinion was read by the Lord Justice-Clerk]—The late Miss Catherine M'Caig, who resided in Oban and was the last survivor of a family of nine, died on 1st July 1913 leaving a trust-disposition and settlement executed in 1908 and a relative codicil executed two years later. The parties to this special case are her trustees on the one hand and certain persons who are beneficiaries under the will on the other. No question is meantime raised as to the validity of the directions and bequests in the earlier of the two deeds, although one of them relates to the erection of a statue on a piece of ground in front of a property in Breadalbane Street, Oban, which belonged to the truster, which she directed to be laid out and kept as an open space.

By the first purpose of the same deed she directed that the trustees should provide for the cost of erection of such a memorial stone or tablet to herself as the trustees might think proper. She further directed that the trustees should hold the capital and apply the income in the first place in payment of the cost of repairs of the whole of her heritable properties and in disencumbering them of any heritable bonds that might affect them at the date of her death; and likewise in keeping in proper order and maintaining the open space and statue above referred to, and the burying places of her father, mother, brothers, and sisters. The other purposes of the trust-disposition need not be referred to.

The matter on which the parties desire our opinion is the validity of the codicil which deals with a building known as the “M'Caig Tower.” This structure, which was built by the truster's late brother, John Stuart M'Caig, about the year 1896 at a cost of £5000, is situated on two acres of ground belonging to the truster on the top of the Battery Hill, which is an elevation 230 feet above sea level close to the town of Oban. The building resembles somewhat the outer wall of a Spanish bull ring, consisting as it does of a circular stone and lime wall pierced with two, and in some cases three, tiers of large arched window-shaped openings. It has a circumference of 210 yards, and the height of the wall varies from 30 feet to 47 feet according to the different levels of the ground, which, so far as enclosed within the wall, is in its natural unlevelled condition.

The directions to the trustees contained in the codicil are perfectly precise, and there is no doubt that if these are valid they can easily be given effect to by the trustees. Briefly their import is that the trustees shall convert the tower into a private enclosure by putting suitable railings across the openings on the ground level and erecting a suitable tower and gateway; that the shall level all the ground within the tower “and lay it out in such manner as may be found most protective and suitable”; and that they shall then erect statues made of bronze within the tower to the testatrix's father and mother and the whole members of the family including a brother (Peter) who died in infancy. Each of the statues is to cost not less than £1000, and the cost is to be made a charge on the free revenue only and their upkeep a perpetual charge on the income of the trust-estate, the trustees being taken bound not to sell or dispose of the M'Caig Tower and statues. It is estimated by the trustees that, on the assumption that the minimum sum of £1000 is expended on each statue, of which there are to be eleven, the revenue will be absorbed for a period of about eight years. On the other hand, no limitation is imposed upon the trustees as to what they may expend, although it may be assumed that the professional gentlemen who were nominated by the truster would exercise a wise discretion in this matter if they are bound to carry out the truster's directions.

Not unnaturally the persons who, but for the codicil, would be entitled to immediate payment of certain annuities object to payment of these annuities being postponed for a minimum period of eight years and for as much longer as the trustees may find it expedient to do so in order to give full effect to the truster's wishes; and the first question of law put to us is whether they are bound to submit to such postponement until the statues and the other works directed by the codicil have been erected and completed out of the free revenue of the trust-estate. If the directions in the codicil are valid and must be carried into effect by the trustees the question falls to be answered in the affirmative; and accordingly the only question raised in the case is the validity of these directions.

It is noteworthy that no beneficial interests are created by this bequest in favour of third parties. Even the public will have no right of access to the inside of the tower, for special provision is made for keeping them out by means of railings across the existing openings on the ground level, and the ground enclosed is expressly declared to be a private enclosure. The trustees alone would have the privilege of entering from time to time this museum of portrait statues of a relatively obscure family; and would no doubt require to do so from time to time to see that the enclosure was suitably maintained. There is, so far as I can see, no person who has a title to enforce the erection of the statues; and there are no descendants of any member of the family alive who might take pleasure in contemplating (if he were permitted to do so) the proposed representations of the forms and features of his relatives. The trustees indeed have been unable to trace the heir-at-law if any such person exists. These circumstances combined would apparently make the bequest void according to the law of England; but it is very unsafe to refer to decisions in that country where limitations of various kinds have been imposed on the power of testamentary disposal by statutes which have no application to Scotland. In England a bequest of a sum of money the income of which is to be applied towards keeping a family tomb in repair is bad; although a bequest for the purpose of maintaining the churchyard in which the tomb is situated will be supported. So also a bequest for the upkeep of a tablet or monument in a church is good, because it forms part of the church; although, if the monument were outside the church, the bequest would be bad. These somewhat fine distinctions depend largely on English statutes, and would, I think, not be recognised in our law which is not embarrassed by statutory limitations of this nature. For my own part, I desire to say that I entirely concur in the view indicated by Lord Kyllachy in the previous case of M'Caig, that there is nothing in our common law “against the validity of a testamentary disposition directed to the providing, on a customary and rational scale, a burial place for a testator or a suitable monument to his memory”; and, I should like to add, of the provision of funds the income of which is to be applied by trustees in keeping them in proper order and repair. It cannot be said that any person has a beneficial interest in the erection or maintenance of a memorial stone to a testator; but public sentiment and custom alike favour the giving effect to such bequests, subject to the limitations expressed by Lord Kyllachy. Even the Crown, for the purpose of assessing inventory duty, allows a sum, suitable to the means or position of a deceased testator, to be deducted for the cost of a memorial stone as part of the reasonable funeral expenses. I desire also to express my entire concurrence with the same learned Judge when he says that there is not necessarily anything against the validity of a testamentary trust for the erection of statues or memorials to historical personages, provided that the public have access to them. I go further, and think that such memorials need not be limited to historical personages, but may include local celebrities who were unknown outside the district in which they lived. On this ground it is possible to support the provision in the will for the erection of a statue to Major M'Caig. This gentleman, we were informed, took a somewhat prominent part in connection with the Volunteer movement; and as the site selected for the statue is in the neighbourhood of the Volunteer Drill Hall in Oban, and on ground which the truster dedicates to the public and directs to be laid out in an ornamental way, the citizens of Oban may derive some benefit from the bequest even although they might have preferred that the statue should have been one of a more distinguished or notable person.

The bequest, however, in this codicil cannot, in my opinion, be supported on any of these considerations. The expenditure of this large sum on statues, which was directed apparently from motives of personal and family vanity, will serve no purpose, all the less seeing that the family has virtually become extinct. It can be of no benefit to the public, because the enclosure in which the statues are to be erected is one to which they will have no right of access. But it is unnecessary to pursue the subject further, because the question appears to me to be decided by the unanimous decision of this Division in the previous case of M'Caig. I am unable to find any substantial distinction between the bequests in the two cases. There are matters of detail with regard to which the testators differed, Mr M'Caig desiring the statues to be erected on the top of the M'Caig Tower, while Miss M'Caig preferred that they should be within its circular wall. There are no legal grounds of distinction; and accordingly our duty is to declare the bequest wholly void. By some of the reasons given by the learned Judges who decided the previous case I do not hold myself bound, but I entirely concur in the result at which they arrived. For myself I am prepared to hold that the bequest is contrary to public policy on more than one ground. In the first place, I think it is so because it involves a sheer waste of money, and not the less so that the expenditure would give employment to a number of sculptors and workmen, for it must be assumed that their labour could be usefully employed in other ways. I think, further, that it would be a dangerous thing to support a bequest of this kind which can only gratify the vanity of testators, who have no claim to be immortalised, but who possess the means by which they can provide for more substantial monuments to themselves than many that are erected to famous persons by public subscription. A man may, of course, do with his money what he pleases while he is alive, but he is generally restrained from wasteful expenditure by a desire to enjoy his property, or to accumulate it, during his lifetime. The actings of the two M'Caigs form an excellent illustration of this principle of human conduct. For many years they had apparently contemplated the erection of similar statues, but they could not bring themselves to part with the money during their own lifetimes. Such considerations do not restrain extravagance or eccentricity in testamentary dispositions, on which there is no check except by the Courts of law. A testator may still leave his means to be expended in stone and lime which will form a monument to his memory, provided the bequest he makes serves some useful public purpose and is not merely for his own glorification. The prospect of Scotland being dotted with monuments to obscure persons who happened to have amassed a sufficiency of means, and cumbered with trusts for the purpose of maintaining these monuments in all time coming, appears to me to be little less than appalling. What a man does in his own lifetime with his own property may be removed by his successor, and no doubt will be as soon as it has ceased to serve a useful purpose. But, if a bequest such as that in Miss M'Caig's codicil were held good, money would require to be expended in perpetuity merely to gratify an absurd whim which has neither reason nor public sentiment in its favour. On these grounds I am for answering the first question in the negative.

Lord Guthrie.—In this case no question arises about the settlement of the testatrix dated 18th April 1908. As to her codicil, dated 20th June 1910, all its provisions are maintained by the second parties to be invalid, except the nomination of an additional trustee and executor, and the provision at the end of the codicil as to the disposal of the revenue available on the deaths of certain liferentrices.

It was maintained by the second parties that this case was ruled by the case of M'Caig v. University of Glasgow, an action in which the testatrix reduced the settlement of her brother, Mr John M'Caig. The second parties said that the provisions of Mr M'Caig's will and those in the testatrix's codicil which are attacked were substantially identical, and that the principles on which the Court proceeded in reducing Mr M'Caig's will were equally applicable to these provisions of the testatrix's codicil. I think these principles are applicable, but there were differences in the facts which prevent the application in terms to this case of some of the principles as they were there laid down.

In the first place, the contest there was between the heir (the testatrix in the present case) and the trustees supporting the validity of certain bequests; in this case the contest is between certain beneficiaries, on the one hand, who complain of provisions in the codicil which would postpone the commencement of the benefits destined for them, and the trustees, on the other hand, maintaining the validity of these bequests. In the second place, the bequests under Mr John M'Caig's will were more contrary to good sense, more unnatural, more referable to a morbid desire for self-glorification, and less referable to a natural and proper desire to perpetuate the memory of near relatives. In the third place, if Mr John M'Caig's bequests had been given effect to, they would, by seriously injuring the appearance of the neighbourhood, have been injurious to public amenity, an objection which cannot be urged against the statues ordered by the codicil in this case to be placed inside an existing building, invisible except to those who choose voluntarily to enter the building.

In considering the law applicable to this case I assume that the testatrix, when she made the codicil in 1910 which is attacked, was as completely in the possession of a sound disposing mind as she was in 1908, when she made the will of 1908, which is not questioned. The suggestion that, if the provisions in the codicil applicable directly and indirectly to the erection of statues can be successfully attacked, the provision in the will for the erection of a statue to the testator's brother Major Duncan M'Caig outside the Volunteer Hall, and the relative provision as to the acquisition and laying out of certain ground, is open to the same objection is unsound. The collocation of the words “Volunteer” and “Major” brings that bequest within Lord Kyllachy's definition, in the previous case, of bequests which are “customary and rational,” or, as I should prefer to phrase it (in view of the onus on anyone benefiting by the act of a rational testator, who questions the validity of other provisions of the same testamentary deed or deeds), which are not unnatural, not contrary to custom, nor unreasonable. I also assume—if the contrary had been the fact it would have been the trustees' duty to state it—that, with the exception of John, the banker, and Major Duncan, none of the persons whose statues are proposed to be erected within the M'Caig Tower did anything in or for the town of Oban or county of Argyll to make it natural that their memory should be perpetuated, for all time, in a building which, from its commanding situation and unusual design, is the most conspicuous object in Oban. Indeed, it appears that some of these persons belonged to the island of Lismore, and had no connexion of any kind with Oban.

It is also necessary to have in view what had already been done, and what the testatrix by her antecedent settlement had already ordered to be done, to perpetuate the memory of the persons, whose proposed statues are in question in this case. In the appropriate places for memorials to persons none of whom could be called public or historical, namely, the churchyards where they were buried, suitable monuments had been erected to them, which the testatrix, in her settlement, gave orders should be kept in proper order and maintenance. In the same document, she ordered the erection of such a memorial stone or tablet to herself as her trustees might find suitable. Then (to take things outside the ordinary methods for commemorating respectable but undistinguished people) her brother John, in 1896, at a cost of about £5000, had built what is known as the “M'Caig Tower.” As to her own settlement, she has two provisions in the same line, which are not questioned, first, for the statue to her brother, Major Duncan M'Caig, already referred to, and, second, for the erection and equipment in Breadalbane Street, Oban, of the “M'Caig Memorial Institute,” as well as the institution of permanent benefits for (1) a church in Lismore (from which the family came), (2) the deserving poor in Oban, (3) Gaelic-speaking male students, and (4) the encouragement of the knowledge of the Gaelic language, all of which would, in one way or another, be permanently associated with the M'Caig family name. In these circumstances, the testatrix ordered in the codicil the erection of eleven bronze statues, to cost not less than £1000 each, to her father and mother, herself, and her five brothers and three sisters, to be placed on ledges or balustrades round the wall of the M'Caig Tower. If, as laid down in the case of M'Caig, the general principle in regard to testamentary bequests be against the validity of any bequest the performance of which there is no one to enforce, and if to that principle there be an exception in favour of memorials to the dead, whether the testator or testatrix, or, as in this case, near relatives, but so far only as these are customary or rational (or, as I have already put it, so far as these are not unnatural, not contrary to custom, and not unreasonable), then I am of opinion that the bequest in question is unnatural, contrary to custom, and unreasonable. I come to this conclusion, because, while the feeling of desire to record the virtues and perpetuate the memory of parents and brothers and sisters was in itself natural, customary, and reasonable, the proposed method of carrying out that desire was in this case unnatural, not customary, and unreasonable. The elements which influence me in thinking the provisions of the testatrix's codicil relative to statues in the M'Caig Tower unnatural, not customary, and unreasonable, are first, because, so far as natural, customary, and reasonable, the desire was or would be fully satisfied by the memorials already erected, or which were to be erected under the provisions of the testatrix's settlement; second, because of the inappropriate place selected in relation to the people to be commemorated; third, because of the method of commemoration by bronze statues of people of whom it would be impossible to make non-ludicrous representations without abandoning likeness and without putting people into picturesque costumes, which they never wore; fourth, because of the proposal to make statues of people in regard to two of whom, the testatrix's father and her infant brother Peter, there were no materials for making any individual representation; fifth, because of the proposal to make a statue (recumbent, I presume) of Peter the infant, to cost not less than £1000; sixth, because of the absence of limit of price, the trustees being entitled to spend thousands of pounds, say, by the employment of a leading London or Continental artist; and seventh, because the testament and codicil order the erection, within a short distance of each other, of two statues to the same person, namely, Major Duncan M'Caig.

The question remains whether I am right in thinking that the principle above stated which was applied in M'Caig's case is sound, and in thinking that it is applicable to and decisive of the present case. As I have already said, the precise view which prevailed in M'Caig's case was dependent on the position of the heir claiming to be relieved of burdens on his estate, and is not in terms applicable to the case of beneficiaries claiming to be freed from conditions postponing the commencement of benefits accruing to them under a testament. It seems to me, however, that the reasoning applicable to both cases is the same. But in M'Caig's case it was conceded that an exception must be allowed in the case of customary and rational provisions by a testator or testatrix for the erection of a monument to himself or herself at the place where he or she is buried. I see no reason why the exception should not include the erection of a monument to an immediate relative—wife, children, brothers, or sisters—and I would not necessarily exclude the erection of a monument at an appropriate place, although not at the spot where the deceased was buried. There are cases, such as loss of life at sea, where this course would be unavoidable.

Each case must, it appears to me, be decided on its own circumstances, subject to the general rule and the exception stated in M'Caig's case. Clear cases may be suggested either way. Had Miss M'Caig ordered £1000 bronze statues of remote ancestors, the case would have been clear in the one direction; on the other hand, had she ordered memorial tablets with bronze medallions of those among her father and mother and brothers and sisters of whom materials remained for executing medallions, I should have hesitated to hold that persons who had accepted the trust were entitled to disregard such an order. I do not even decide that her bequest for the erection of statues within the M'Caig Tower would have been invalid had the statues been limited to those of her father and mother, with the price restricted to a certain reasonable amount. The question is one of degree, and it seems to me that the testatrix in this case has gone over the line. I do not found on the English cases quoted to us, because the Scots law does not recognise the rule against perpetuities, which is the foundation of these cases. Nor are some of the analogies used in argument helpful. Accumulation beyond twenty-one years is unlawful; but that is brought about by statute. The illustration of a testator ordering his trustees to throw his money into the sea involves destruction, not abnormal and unreasonable appropriation. It is no doubt the case that the function of the Courts, civil and criminal, is to prevent illegal rather than unreasonable actings; but there is all the difference between what a man, uncognosced, may do at his own hand, and what the law will support under the provisions of his will. If the law of mortmain is to be allowed at all, it is not unreasonable to say that it must not result in a large measure of useless waste. Therefore, without being illegal in the sense of being contrary to any express rule of the common law or contrary to any statute, the principle of public policy will prevent such postmortem expenditure. Whether the act is sufficiently contrary to public policy to warrant the Court's interference must depend on the degree to which it is against public policy. In this case, it seems to me that to give effect to the part of Miss M'Caig's codicil concerned with the erection of eleven statues would be of no benefit to anyone except those connected with the carrying out of the work, for whose interest she expresses no concern. If anybody went to see the statues, supposing they represented faithfully the persons to be commemorated, it would not be to admire them but to laugh at them, and perhaps to philosophise on the length to which morbid family pride may drive an otherwise sensible person. These statues would not, in fact, achieve Miss M'Caig's object of perpetuating an honourable memory. They would turn a respectable and creditable family into a laughing stock to succeeding generations. On the other hand, the benefactions in Miss M'Caig's settlement, which are not questioned, will associate the family and their name in the future with useful objects.

I cannot distinguish the bequest in the codicil relative to the erection of statues from clauses one and two of the codicil. If there are to be no statues, the enclosure on Battery Hill may just as well remain freely accessible to the public without gates. In providing that the space should be made into a “private enclosure,” and for the erection of a tower and gate, and for the laying out of the ground so as to be “protective,” the testatrix clearly had the statues in view.

I would, therefore, propose to answer the first question in the negative, and the second question in the affirmative.

Lord Justice-Clerk.—I am the only Judge of the present Bench who joined in the decision in the former case relating to the will of the brother of the testatrix in this case. It seems to me that while the objections to his will were stronger than those relating to the present will, the present will falls within the grounds stated in that case for setting the deed aside. The character of the directions given in the codicil which we are considering are so similar to those given by the late Mr M'Caig that the views expressed in the former case apply. Seeing no reason to modify the views which were there expressed, I feel that, applying that decision, the result must be that which your Lordships propose.