Scottish Court of Session Decisions

Lord Sands.—This special case is brought to determine a question arising under a provision in the trust-disposition and settlement of a Mr George Aitken, who died at Musselburgh in the year 1909. The testator describes himself in his settlement as a farmer and merchant. We were informed that he also carried on business as a butcher in Musselburgh. The amount of his estate shows him to have been a man in prosperous circumstances. His estate now consists of heritage yielding £986 per annum and moveables of the value of £4700. According to his statement his ancestors, both on the father's and the mother's side, had been connected for several centuries with the burgh of Musselburgh, and he was the last survivor there in the male line. We are not told of any special distinction attained by these ancestors, but we are bound to assume that they were an honourable race of burghers. We were further informed that it is the custom to perambulate the marches of the burgh of Musselburgh every twenty-five years, and on these occasions a burgess is chosen by vote to ride as “champion,” and that on two of these occasions Mr Aitken was so chosen.

The eighth purpose of the settlement is as follows:—[His Lordship quoted the eighth purpose, and continued]—The testator then goes on to give directions as to the provision of an endowment fund for the upkeep of the ground and monument. The site of the proposed monument is on one of the main streets of Musselburgh at the corner of a side street.

The validity of the directions in regard to the memorial statue are challenged both by the residuary legatees and by the heir-at-law. They base their challenge upon two comparatively recent cases—the M'Caig cases—which opened up a new chapter in our law. In the first M'Caig case the testator had left directions that the revenue of his heritable property should be used for the erection of statues of himself and his brothers and sisters and his father and mother, and thereafter (for all time apparently) in the erection of towers on prominent places on his estates. The Court, in an action at the instance of the heir-at-law, held this direction to be invalid. It would appear that the Court, hesitating to recognise a new principle, viz., the setting aside of a bequest on account of its fantastical or egregious character, sought, while reserving that question, to rest their decision upon an old principle, viz., that the heir cannot be negatively disinherited—the estate must be given to some other person who is in titulo to enforce his right. There can, however, be no doubt that, while this is the ostensible ground of judgment, the Court took account, not merely that no enforceable beneficial interest was created, but that the directions were, in their view, egregious. The bald doctrine that a trust purpose, neither immoral nor irrational, which trustees are directed to carry out fails unless a beneficial interest is created in some particular persons, or, in other words, unless it is possible to point out some person other than the heir to whom a gift has been made, seems to me not to be maintainable. An heir may be disinherited, not only by a bequest to some particular person or persons, but also by the dedication of the heritage to a purpose which is not irrational. I shall revert to these considerations presently, but before doing so I advert to the second M'Caig case. In this case there was no known heir, and the challenge of the bequest was by the residuary legatees. Accordingly, the doctrine of disinherison was not invoked. In this case the directions were of a somewhat similarly ridiculous character to those in the first case. The Court held that these directions were unreasonable, and that, accordingly, it would be contrary to public policy to carry them out. Ostensibly, therefore, the ground of decision in this case was different from the ground in the first case, in which the Court ostensibly but, as I think, ineffectually, professed to reserve such a question as was decided in the second case.

In view of the stress which was laid upon the principle of disinherison in the first case of M'Caig, it is necessary to examine this matter. The principle I take to be this, that a man cannot disinherit his heir negatively. If he prescribes, “My heir shall not succeed to my heritage,” but fails to dispose of his heritage otherwise, the heir takes. But, on the other hand, if, after disinheriting his heir, he purports to go on to dispose of his estate otherwise, the question of whether he has effectually disinherited his heir will depend upon whether or not he has validly disposed of his estate. If he has failed to do so, then the heir will take. The bequest which is held to be ineffectual fails, not because it cuts out the heir, but owing to its inherent invalidity. The validity of a disposition of his estate by the father of a legitimate son whom he purports to disinherit will fall to be judged of just in the same way as a disposition of estate by a childless bastard. The rule anent disinheriting the heir is just a way of stating negatively what may be expressed positively by the proposition that property, which is not validly disposed of otherwise, falls to the heir. The question with an heir resolves itself into this. Is the deceased intestate as regards this estate in respect that, though he purported to dispose of it, he did not do so in a manner which the law regards as effective? In the second M'Caig case, as in the first, the question was, Has this property been validly disposed of by the testator's settlement? If a bequest be inherently invalid it cannot prevail against the heir; equally it cannot prevail against next of kin or exclude residuary legatees. But I can find no principle which requires that a different test of validity falls to be applied in the two sets of circumstances.

If I am right in this view, the sole question before us is whether the testamentary directions here in question are such as the law will give effect to, and the question of whether, if we answer that question in the negative, the benefit will accrue to the heir or to the residuary legatees, so far as the determination of this question is concerned, is irrelevant.

The difference between the rules applied in the two M'Caig cases is dialectical, and, in my view, devoid of substance. In the first case the Court affirmed: “This bequest confers no benefit upon anybody, therefore it is ineffectual to oust the heir.” In the second case they affirmed; “This bequest confers no benefit upon anybody, accordingly it is unreasonable and wasteful, and therefore it fails as being contrary to public policy.” There might be substance in the discrimination between the two cases if it were possible to figure a bequest which could confer no conceivable benefit, direct or indirect, upon any person or class of persons, but which was nevertheless reasonable and not wasteful. Counsel were unable, however, to suggest any such testamentary direction except one, to erect a suitable sepulchral memorial to the deceased; but that is a special case, and the direction would be just as good against the heir as against any other party. I ventured to suggest a bequest for the benefit of certain animals; but it has been held that such a provision may be beneficial to the community as encouraging kindness.

Accordingly, I take the law applicable to the present case as based upon the M'Caig cases to be that, if testamentary directions are unreasonable as conferring neither a patrimonial benefit upon anybody nor a benefit upon the public or any section thereof, the directions are invalid. I qualify this in this way, however, that the Court is not to make itself the judge of what is for the public benefit. It is enough that the object is one, not immoral or contrary to public order, which a certain section of opinion may regard as of public benefit. I adject this further possible qualification, that it may be of public benefit that the reasonable, honourable, or pious wishes of a testator should not be disregarded, even though it may be impossible to qualify any other interest in the carrying out of his wishes. This, perhaps, satisfactorily covers the case of a direction for reasonable sepulchral memorials either to the testator himself or to his predecessors. To discourage regard to such pious sentiments towards the dead may perhaps be considered as detrimental to the moral interests of the living.

The testamentary directions as regards the statue in the present case may be regarded from three points of view—pious, personal, and civic. As regards the first, interest in one's ancestors and pride in one's ability to trace-them for many generations, and in their respectability if not their distinction, is a typical, and in some respects a not unlaudable, trait of the Scottish character. Apart, therefore, from the manner chosen, there was nothing egregious in the desire of the testator to commemorate his ancestors in their and his native town. The personal and the civic aspects of the matter run together. It was probably a just source of pride to the testator that he had twice been chosen by the voice of his fellow-townsmen as their symbolic champion. Moreover, from the part which he was called upon and was willing to play, I think that it may be taken that he was not a stolid, unimaginative modernist, but that, on the contrary, he was interested and took a pride in the old ritual celebration, and in the preservation of ancient civic customs. If, as may not unreasonably be supposed, he was desirous that old customs should not die out, the erection of a monument was certainly a more humane way of keeping memory alive than was the whipping of boys which took place at march ridings in the days of old.

I arrive, accordingly, at the conclusion that the objects of the testator were not unreasonable, and that they are entitled to a measure of respect. In this view I confess that at one stage of the argument I was inclined to the opinion that we should not be warranted in disturbing the testamentary directions; but further reflection has brought home to my mind that the considerations to which I have adverted are not conclusive. A testator's intentions may be reasonable, but may nevertheless fall to be disregarded if he has provided a means for carrying them out which will clearly be ineffectual. The object of the testator I take to be that the memory of his family should be held in honour in Musselburgh, that his own name and memory should likewise be held in honour, and that interest and pride in ancient civic customs should be kept alive in his native town. Can the carrying out of the directions which he has given be reasonably regarded as calculated to effect these objects or any of them?

The determination of the question involves a somewhat delicate exercise of judicial discretion. But I am greatly influenced by the following considerations. The municipality of Musselburgh, representative of the community, are strongly opposed to the carrying out of the testator's scheme, and they have passed a resolution to the effect that it is a “fantastic proposition.” Eighteen years have been allowed to pass since the testator's death without any steps having been taken by anybody to stimulate the activity of the trustees. I conceive that, if there had been any minority or other movement counter to the opinion of the Town Council, it would have been the duty of the trustees to bring the matter before us. The attitude of the trustees, in upholding in argument the validity of the bequest, is correct, but it seemed clear in the course of the discussion that, so far as they are concerned, there is no conviction behind it.

These considerations all point in the direction that the purpose of the testator would not be effected by the erection of the proposed statue, but that, on the contrary, its erection would cause the memory of the testator and his family to stink in the nostrils of the community of Musselburgh, as associated with a monument which tended to make their town and their ancient civic customs ridiculous.

The citizens of Edinburgh regard the Scott Monument with pride as an imposing architectural memorial to a citizen whose name is held in honour throughout the world. But, if that monument had been erected, where it is and as it is, to the memory of an obscure tradesman who had happened to be captain of the orange colours, with a massive statue of the tradesman in the centre of it, would the citizens of Edinburgh have regarded this monument with pride, would they have cherished the memory of that tradesman with affection, would their hearts have glowed with honest civic pride in the orange colours whenever their eyes rested upon the stately pile? I think not. I think that they would have regarded the monument and the statue with loathing as making the city ridiculous, and that, despite the artistic merits of the edifice and sculpture, they would have wished the monument and the statue and the orange colours with the memory of the deceased tradesman all at the bottom of the Forth.

One must not compare Musselburgh with Edinburgh, or High Street, Fisherrow, with Princes Street. But Musselburgh people as well as Edinburgh people may be credited with some local pride and sensitiveness, and with some sense of the ridiculous. It can hardly be suggested that this equestrian statue can be of interest to anybody outside of Musselburgh, except, perhaps, as a curious illustration of human vanity. It is in Musselburgh that the memory is to be cherished and civic pride stimulated. There is, in my view, every indication that the erection of this statue would not effect these purposes, but would militate against them. It may perhaps be suggested that the validity of the bequest falls to be judged of as at the date of the testator's death, and that it cannot be rendered invalid by anything that has occurred in the Town Council or elsewhere since. But in judging whether the bequest was valid as at the date of the testator's death as being reasonably calculated to carry out a rational purpose, we are entitled to avail ourselves of whatever may throw light upon that matter as at the date when we are called upon to consider the question. Doubtless, if the bequest was valid, subsequent disapproval by the Town Council and the community generally would not render it invalid. But this is not the issue. The question is whether, now that we are called upon to adjudicate upon the matter, we think that the bequest was invalid at the date of the testator's death as being an irrational and ineffective plan to carry out an object in itself not unreasonable. In considering how such a scheme falls to be regarded we are entitled, I think, to take into account how it is regarded. If there were a public desire in Musselburgh that this project should be proceeded with, we should probably be taking too much upon ourselves in determining that the scheme was irrational as calculated to defeat its own objects; but now—fortified by the indications of public opinion, though not bound by them—I think we are warranted in reaching this conclusion. I am accordingly of opinion that the testamentary directions fail as being an irrational, futile, and self-destructive scheme to carry out not unreasonable purposes. [His Lordship then dealt with a question between the heir-at-law and the residuary legatees, with which this report is not concerned.]

Lord Blackburn.—George Aitken, a farmer and merchant residing in Musselburgh, died in 1909 leaving a trust-disposition and settlement with two codicils, all dated within a few days of his death. [His Lordship narrated the provisions of the eighth purpose dealing with the erection of the statue, and proceeded]—

The existing buildings on the site consist of two shops and three residential houses, with a rental, so we were informed, of £100 per annum. It is not suggested that his ancestors played any very prominent part in the history of the burgh, and the only public service rendered by the testator himself appears to have been that he twice filled the position of champion at the riding of the marches, a ceremony which takes place only once in every twenty-five years. Judging from a photograph which was exhibited to us of the testator in this character, it would, I think, be impossible for any sculptor with such a subject to produce a statue which faithfully represented the subject and at the same time was of “artistic merit.” [His Lordship then narrated the part of the eighth clause dealing with the maintenance of the statue, and continued]—Whatever be the meaning of a direction to hand over the care of the monument to the Corporation, it appears unlikely that the Corporation will be willing to accept that duty. In Article 9 of the case it is stated that on 25th March 1925 they passed a resolution that “the erection of the statue should meet with no approval or encouragement from the Council on the ground that a valuable property would require to be removed, and that the erection of the statue was a fantastic proposition.”

[His Lordship then gave a summary of the ninth purpose, and proceeded]—The parties to the case as originally presented were (first) the testamentary trustees; (second) the trustees specially nominated for the eighth purpose of the settlement; and (third) the nephew and the grandson entitled to the liferent of the residue. The case was continued to enable the heir of the truster to become a party to the case if so advised, and he is now the fourth party to the amended case. It was argued on his behalf that the directions to the trustees with reference to the erection of a statue on the site chosen are invalid, in respect that the trustees are not directed to make over any beneficial interest in the site and the monument to the Corporation or to any other public body, but are merely directed to entrust the Corporation with the care of the subjects, and to provide them with a mortification of £20 per annum for that purpose. It was further argued for him that the subjects in question are expressly excluded from the residue clause, and consequently that, no beneficial interest in them having been given to anyone, the directions are insufficient to divest him of his right to the site and the buildings thereon as heir-at-law.

I do not doubt that a direction to make over the site with the statue on it to any public body which was prepared to take care of it would have been sufficient to exclude the heir-at-law. Nor do I doubt that a direction to erect something obviously designed for the public benefit, e.g., a hospital, with a direction to hand over its care to some public body, might be construed as indicating an intention that the whole subjects were to be conveyed to the public body. But we are not dealing here with a subject to be erected for the public benefit, but with a statue to perpetuate the memory of the testator and his family; and the more often I read the deed the more convinced do I become that it was of set purpose that the testator did not direct his trustees to convey the site or the monument to anyone. His purpose was that the statue should remain in situ in perpetuity, and to convey a right of property in the subjects to anyone else might have defeated that purpose, while a mortification of a sum of money to the Corporation would ensure that it would be looked after. It cannot, I think, be assumed that he was aware that unless he bestowed a beneficial interest in the subjects on someone the right of his heir would not be defeated. This being the impression I have of the testator's intentions, I think the directions given by him fall to be construed in the strict sense of the language used; and, if this is done, it appears to me clear that, apart from the terms of the residue clause, there is no direction to the trustees to confer a beneficial interest in the site on anyone, and accordingly they would be bound in terms of section 21 of the Titles to Land Consolidation (Scotland) Act, 1868, to reconvey the site to the heir. This view of the case appears to me to be in accordance with the decision in the first M'Caig case.

Before dealing with the terms of the residue clause I should now refer to a separate argument submitted for the heir-at-law, and adopted by the liferenters of the residue, to the effect that the direction to deal with the site as proposed by the testator is invalid as contrary to public policy. This is the ground on which the directions given in the second M'Caig case were held to be invalid. It is, I think, clear from the opinion of Lord Kyllachy in the first M'Caig case that, had he found himself unable to dispose of the case on the ground that the rights of the heir had not been excluded, he would have done so on the wider ground that the bequest was contrary to public policy. It is right however, to add that Lord Stormonth Darling expressed no opinion on this question, while Lord Low did not concur in the suggestion that the bequest was unlawful or contrary to public policy. In the second M'Caig case the Lord Justice-Clerk, who had also taken part in the first case, and Lords Salvesen and Guthrie, held that directions very similar to those in the first case were invalid, in respect of their unreasonable, extravagant, and useless character. I refer to the opinions of Lord Kyllachy in the first case and Lord Salvesen in the second for the reasons given for holding that such directions are contrary to public policy. In my opinion the directions in the present case are even more objectionable than those in the M'Caig cases. They are equally unreasonable, extravagant, and useless, and they merit fully the epithet of “fantastic” applied to them in the resolution of the Town Council quoted above. They are more objectionable from a public point of view than the directions in the M'Caig cases, in respect that they involve the destruction of a valuable rent-producing property in the middle of a burgh without any conceivable benefit to the inhabitants of the burgh. In view of the decision in the second M'Caig case, and of the opinion expressed by Lord

Kyllachy in the first, with which I entirely agree, I do not think we are entitled to hold that the direction in this case is other than invalid as contrary to public policy. [His Lordship then dealt with the other question in the case.]

Lord Ashmore.—In this case the late George Aitken, the truster, left a trust-disposition and settlement conveying his whole means and estate, heritable and moveable, to trustees. The questions for decision relate to the truster's directions, contained in the eighth purpose of his will, as to the erection on the site of his property at the corner of High Street, Fisherrow, and South Street, of a massive equestrian statue of artistic merit representing the truster as champion at the riding of the town's marches. For this purpose he further directed that the site should be enclosed in an artistic manner and laid out with shrubs or otherwise, and that the whole work should be done unsparing of expense. He estimated the expense at not less than £5000.

The truster died in 1909. On 10th March 1925 the Town Council of Musselburgh approved of the report of a committee to the effect that the erection of the statue should meet with no approval or encouragement from the Council, and that the erection of the statue was a fantastic proposition.

In this special case the testamentary trustees contend that they are bound to proceed with the erection of the statue; the residuary legatees contend that the directions contained in the eighth purpose are invalid, in respect that they are unreasonable, extravagant, useless, and contrary to public policy, and that the heritable property in question accordingly forms part of the residue; and the heir-at-law contends, in the first place, that the directions in the eighth purpose confer no beneficial interest in any person or class of persons, and are ineffectual to exclude him from taking the heritage as heir; in the second place, that the directions are invalid on the grounds stated by the residuary legatees; and in the third place, that the heritage falls into intestacy and passes to him as the truster's heir-at-law.

I have come to the conclusion, for reasons which I shall explain later, that the directions contained in the eighth purpose, on the assumption that they are valid, would effectually exclude the heir-at-law. No authority was cited in support of the argument to the contrary, and I think it right to explain briefly the grounds of my opinion. The truster expressly conveyed his whole estate, heritable and moveable, to his trustees, and proceeded to give directions for the disposition of the estate so conveyed; and, if the directions contained in the eighth purpose are valid, the trustees would certainly be bound to carry them out, with the result of disinheriting the heir-at-law from the succession to that part of the heritage. In the words of Lord Neaves:—“The heir may be excluded mortis causa in two ways, but, generally speaking, in two ways only— (first) by a disposition in liege poustie in favour of a third party; and (second) by a trust-disposition in liege poustie, accompanied or followed by a direction as to the beneficial disposal of the heritage, also made in liege poustie”—Neilson v. Stewart, (1860) 22 D. 646, at p. 650. I refer also to the following decisions—Brack v. Hogg and Johnstone (1827) 6 S. 113, affd. (1831) 5 W. & S. 61; Cameron v. Mackie, (1831) 9 S. 601, affd. (1833) 7 W. & S. 106.

It was further contended that the directions contained in the eighth purpose are ineffectual, in respect that, even if valid, they would confer no beneficial interest on any person or persons, and that no one would be entitled to enforce the carrying out of the directions. This contention seems to me to be based on erroneous assumptions. If the directions are valid, that would mean that the carrying out of the eighth purpose would be in the interest and for the benefit of the community. In In re Church Patronage Trust, [1904] 2 Ch 643, at p. 654, Lord Justice Cozens-Hardy put the law thus:—“In order to create a valid trust you must have, not only a trustee, but a cestui que trust. That cestui que trust may be either an individual or individuals, or the public or a class of the public.” Moreover, it is a fallacy to assume that, according to our law and practice, the trust purpose, if valid, could not be enforced. According to the law of Scotland the heir-at-law or next of kin of the truster, or any person interested in the carrying out of the truster's directions, is entitled to enforce the due fulfilment of the trust; and in the case of a trust for the benefit of the public or some class of the public the Lord Advocate can intervene. I refer to Lord Gifford's opinion in the House of Lords in Hill v. Burns, (1826) 2 W. & S. 80, at p. 91, and to M'Leish's Trustees v. M'Leish, (1841) 3 D. 914.

In England the enforcement of such a trust may be attended with difficulty, as explained by Mr Justice North in the case of In re Dean, (1889) 41 Ch D 552, at p. 557. “A trust,” said his Lordship, “to lay out a certain sum in building a monument, and a gift of another sum in trust to apply the same to keeping that monument in repair, say, for ten years, is, in my opinion, a perfectly good trust, although I do not see who could ask the Court to enforce it.”

I come now to the question which I regard as the most important and the most difficult of solution. Is the eighth purpose valid and effectual? My opinion is in the negative. The only authorities on this head of the case to which counsel for the parties referred were the two M'Caig cases. I have, however, found little in these cases directly helpful towards the determination of the question now under consideration. The truth is that each case of this kind must be judged and decided on its own circumstances. In this case I think that the arguments advanced against the validity of the eighth purpose were too extreme, and that the question is attended with doubt and difficulty. In the result, one consideration has led me to a conclusion adverse to the validity of the truster's directions in the eighth purpose of his will. I refer to the resolution of the Town Council of Musselburgh, from which I have already quoted. I recognise that on such a question the Town Council was in a favourable position to give expression to the prevailing opinion of the community, especially in view of the fact that several years had elapsed since the death of the truster and the announcement of his directions as to the erection of a massive equestrian bronze statue. Indeed, the adverse criticism of the Town Council seems to me to negative the suggestion of the testamentary trustees of the truster that the erection of the statue would be in the interest of the inhabitants of Musselburgh, or would confer a benefit of any kind on the community. Moreover, nothing is stated in the special case to show that the carrying out of the truster's directions would be helpful to the citizens of the burgh or beneficial in any way; nor was anything said to indicate that there is any desire on the part of the public, or any section of the public, for the erection of the statue. I am the more impressed by the unfavourable attitude of the Town Council, because the question, as I think, is on the border-line by reason of the doubt and difficulty attending its solution. For the reasons which I have given, I am in favour of holding the truster's directions in the eighth purpose invalid and ineffectual, in respect that if these directions were carried out they would confer no benefit or advantage of any kind on anyone. [His Lordship then dealt with the other question in the case.]