Scottish Court of Session Decisions

On 23rd April 1914 the Reverend George Henry Donald and others, the Kirk-Session of the West Parish of St Nicholas, Aberdeen, petitioners, presented to the Court a petition for approval of a scheme for the administration of a fund of which they were trustees.

The petitioners averred—“That on 28th January 1846 the Kirk-Session of the West Parish of St Nicholas, Aberdeen, resolved that steps be taken with a view to obtaining funds for the erection of a sessional school for the said parish, and in a convenient situation therein, in order the more effectually to avail themselves of the advantages then in their power for the education of the children of the poor of the congregation and parish, and to realise more fully in this respect to the parish the benefit of the parochial system of the Church of Scotland. Following on this resolution a building fund was raised amounting to about £1300. The said fund included (1) grants from Government amounting to £382; (2) grants from the trustees of John Gordon's Charitable Fund (a local body) amounting to £150, and made on the express condition that the said school should not be appropriated or used for any other purpose than that of a sessional or parish school; (3) legacies; and (4) subscriptions and collections from members of the congregation and similar sources.

Thereafter the said Kirk-Session purchased a site in George Street, Aberdeen, for the said school. The conveyance of the site bore to be granted under the authority of 4 and 5 Vict. cap. 38, entitled ‘An Act to afford further facilities for the conveyance and endowment of sites for schools,’ and provided, inter alia, that the property should be held for the purposes of that Act, and be applied as a site for a school for poor persons of and in the West Parish, and for no other purpose whatever, such school to be under the management and control of the Kirk-Session. The school was accordingly erected and carried on by the Kirk—Session as an elementary school for the said parish and was enlarged in or about the year 1865.

On 26th November 1851 the Kirk-Session adopted a constitution for the said school. That constitution, which the Presbytery of Aberdeen sanctioned on 24th December 1851, provided, inter alia—(1) The property of the school is, and hereafter shall ‘be, vested in the Moderator and other members of West Parish Kirk-Session as a board of trustees for educational purposes within said parish. (2) The school shall be called the West Parish School and shall be in perpetual connection with the Established Church of Scotland, and under the superintendence and management of the Kirk—Session of West Parish, and subject to the jurisdiction of the Presbytery of Aberdeen in the same manner as are the parochial schools established by law. (3) The object of the school shall be to provide for the children of parishioners and others the elements of a useful secular and religious education.… (5) The school fees and other sources of revenue available for the school shall be applicable only towards payment of teachers' salaries, the purchase of books, and other furnishings for the school, the upholding of the fabric of the school and keeping of it in repair; the expense of insurance, the payment of feu-duty, and other proper and necessary expenses connected with the school and property thereof. (6) The teachers … in addition to the hours given to the work of instruction on week-days … shall employ not less than one hour on Sabbath in the religious instruction of the children attending school during the week, and such others being children of parishioners as may attend.’

The school remained vested in the said Kirk-Session for the objects set forth in the said constitution until December 1873. In July 1873 the Education Committee of the General Assembly of the Church of Scotland requested the Kirk—Session to transfer to them the said school, to be used as a practising and model school, and as a training college, subject to its being also conducted as theretofore as an elementary school for the benefit of the parish. In compliance with the said request, the school was so transferred by assignation, dated 17th and 18th December 1873.” …

[The assignation bound the Education

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Committee to provide in the said buildings for an elementary school as theretofore, or in the event of their failure so to provide an elementary school to pay to the Kirk—Session the sum of £1190, 18s. 1d. After certain changes in educational administration the Education Committee sold the buildings and paid to the Kirk-Session on 10th February 1910 the sum of £1190, 18s. 1d.

“The said sum of £1190, 18s. 1d. was invested by the Kirk-Session partly in £1000 4 1 2 per cent. debenture stock of the Great Central Railway Company and partly in the West Parish Savings Bank and on deposit-receipt. The interest at the outset was applied in payment of the rent above mentioned ( i.e., a rent of £19 paid by the West Parish for use of the buildings for a Sunday School), and other expenses, and in a grant ex gratia of £5 to St George's-in-the-West quoad sacra Parish, Aberdeen, which was erected in 1880 mainly out of the West Parish, and the balance of interest has been accumulating pending the disposal of this petition.

The petitioners desire and deem it expedient and consistent with their duties and with the intention of the original trust that the said fund should be devoted to the maintenance of Sunday Schools and religious training of the young, and mission services for the poor of the parish, and to the taking on lease and purchase or erection of buildings for these purposes. They accordingly crave the Court to settle a scheme with a view to the carrying out of these purposes and sanctioning the investment of the said fund.”

Answers were lodged for the Reverend James Smith and others, the Kirk-Session of the quoad sacra Parish of St George's-in-the-West, Aberdeen.

The answers stated—“The respondents concur in the statements of fact narrated in the petition except in so far as therein stated that the said quoad sacra parish of St George's-in-the-West was erected ‘mainly out of the West Parish,’ the said quoad sacra parish being in fact erected entirely out of the said West Parish.

The area covered by the said quoad sacra parish was at the time of the building of the original school inhabited by those for whom the school was especially intended, and in point of fact the greater number and the poorer of the children attending the said school were drawn from this area. The original buildings and the buildings which now stand in their place are entirely within the said quoad sacra parish.

When the fund of £1190, 18s. 1d. became available the respondents through their moderator made a claim for a share of the said fund. This claim has never been disputed by the petitioners, and the sum of £5 mentioned in the petition as an ex gratia grant was in fact voted by the petitioners to the respondents as a contribution from the fund. When the said quoad sacra parish was erected with the concurrence of the petitioners no reservation was made of any claim to the said fund.

The respondents have erected within the said quoad sacra parish a hall for Sunday school and congregational purposes, and they are therefore in a position to carry on the religious work mentioned in the petition in the manner contemplated when the original school was set up.

In the whole circumstances the respondents respectfully submit that they are entitled to a share of the said fund for the exclusive use of the said quoad sacra parish, and that in any new scheme for the management of the said fund the petitioners should provide either for payment to the respondents of the capital sum of £500, or alternatively for payment to the respondents annually of the sum of £20, in order that the respondents may provide for religious instruction in the said quoad sacra parish in the manner intended when the resolution of 28th January 1846 was passed and which covered then the whole undivided West Parish of which St George's-in-the-West quoad sacra parish is the northern half.”

On 19th June 1914 the Court remitted to Mr R. A. Lee, advocate, to inquire into the facts and circumstances set forth in the petition and answers and to report.

On 4th February 1915 Mr Lee reported, and submitted the question whether it was proper that as in the proposed scheme the poor of the respondents' parish should be excluded from all the benefits of the trust.

The petitioners argued—The fund was destined for the benefit of the parishioners of the West Parish. The quoad sacra parish was a new parish set up, and the poor of this new parish had no claim on the fund. There was no precedent for division of the funds of a parish church when part of the parish was disjoined quoad sacra. No division of teinds or endowments was made. Old Monkland School Board v. Bargeddie Kirk-Session, November 15, 1893, 21 R. 122, was distinguishable from the present case. In Old Monkland School Board a scheme had to be adjusted for two distinct purposes—educational and religious. The appropriate claims were made by the school board and the kirk-session. In the present case both parties claimed for the religious purposes to which the fund was dedicated.

The respondents argued—The fund was a trust for behoof of the poor persons in the area known when the fund was instituted as the West Parish of St Nicholas. The decree of disjunction was for ecclesiastical purposes only, and could not exclude beneficiaries from participation in the trust funds. A large proportion of the beneficiaries were in the area known after the disjunction quoad sacra as the parish of St George's-in-the-West. Old Monkland School Board was in point, and the Court should follow it and divide the fund.

On 13th March 1914 the opinion of the Court (the Lord President, Lord Mackenzie, and Lord Skerrington) was delivered by