Scottish Court of Session Decisions

In support of the validity of the bequest Mr MacRobert and his learned junior presented an able argument. It took, as I understood it, the form of two alternative propositions—first and mainly, that the word “or” was not here used in a disjunctive sense so as to separate “charitable institutions” from other “deserving institutions,” and the phrase used, fairly read, was equivalent to “such charitable or other kindred institutions ejusdem generis” as the trustees might select; secondly, and in the alternative, it was argued that the bequest would in any event be saved from uncertainty by the specific limitation “in connection with the city of Glasgow.”

I do not see my way to accept the main proposition thus put forward. The case is very like that of Symmers' Trustees, recently decided by this Division ( 1918 S.C. 337), where a bequest to “such charitable institutions or deserving agencies in Aberdeen or Stonehaven as” the trustees “may select” was held void from uncertainty. I think Mr MacRobert was justified in suggesting that the word “agencies” was more vague and uncertain than “institutions,” but I do not think, when I read the opinions delivered in Symmers' Trustees, that if the bequest had been to “such charitable institutions or deserving institutions,” &c., the decision of the case would have been different. The word “deserving” seems to me to be so vague and indefinite that I do not think “deserving institutions” could have been held any more than “deserving agencies” to constitute a sufficiently particular class in the sense of the decisions to avoid uncertainty. If this be so, this case is differentiated from Symmers' Trustees only by the introduction of the word “other.” It was argued that this word makes all the difference, because it makes the phrase read “charitable institutions, or other like institutions ejusdem generis.” I cannot accept this view as matter of construction and of the ordinary signification of plain language. The genus, I assume, is “charitable institutions.” Either, then, the words which follow are mere surplusage—a construction which I do not think can be entertained—or they stand in direct antithesis to the generic phrase as importing institutions which though not charitable are deserving, and which are thus excluded from the class of charitable institutions. It seems to me to follow that the bequest must fail. I think the word “or” must here be a true disjunctive. We were referred to cases of which Mackinnon's Trustees ( 1909 S.C. 1041) and Hay's Trustees ( 1908 SC 1224) are examples, where such words as “philanthropic” or “benevolent” were so linked with “charitable” as to be held to be not indeed synonymous with but so far resembling “charitable” as to be easily understood to be exegetical of that word. But any argument of that sort is in my judgment excluded by the introduction of the word “other.” Then Mr MacRobert appealed to Lord Loreburn's dictum in Weir v. Crum Brown ( 1908 S.C. (H.L.) 4), accepted and followed by this Court in Allan's Executor ( 1908 S.C. 807), and by the House of Lords in Wordie's Trustees ( 1916 S.C. (H.L.) 126)—“All that can be required is that the description of the class to be benefited shall be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator.” In the recent case of Turnbull's Trustees ( 1918 SC (HL) 88), however, Lord Atkinson (at pp. 94, 95) pointed out that the dictum must not be divorced from its context and from the special facts of Weir's case, and that it is not legitimate to treat it “as laying down an absolute rule for the solution of all doubts in the construction of clauses in wills such as that to be construed in this case.” The class to be benefited or from which selection is to be made must be indicated with a sufficient degree of precision, which in my judgment is here lacking.

Nor in my opinion can Mr MacRobert's alternative contention materially aid him towards success. I am not satisfied, to begin with, that the words used would confine the selection by the trustees to institutions actually existing “in connection with the city of Glasgow” at the testator's death. I can see nothing in the words used to prevent them if the clause be valid from benefiting some institution in existence at any time before the funds were actually divided, as to which considerable latitude is expressly conferred upon them by the settlement. Even assuming the point, however, in Mr MacRobert's favour, it was, I think, clearly enough laid down by the noble and learned Lords in Turnbull's Trustees that while local limitation may in certain circumstances aid in avoiding uncertainty, it will not do so unless the reference to locality removes or helps to remove uncertainty as to the nature and scope of the class of objects to be benefited, among which the selection is to be made; and this in my judgment it fails here to do, if my understanding of the language of the bequest is correct. I adopt as applicable here what Lord Chancellor Finlay said in Turnbull's Trustees (at p. 90)—“The purpose is too vague, and the vagueness of the purpose is not cured by the specification of the locality to be benefited”; and I would venture to adapt to the case before us Lord Shaw's observation (at p. 96) that “local limitations expressed by the words ‘in connection with’ the city of Glasgow” do not “add any definiteness to the class of purposes or objects which it was in the mind of the testator to benefit or promote.” In my view therefore we should answer the question in the affirmative. But as the majority of the Court think otherwise the answer will be in the negative.

Lord Salvesen—I have had an opportunity of reading Lord Dundas' opinion and agree with him as to the way in which all the questions in the case should be answered, with one exception. That exception

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