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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McConochie's Trustees v McConochie [1909] ScotCS CSIH_1 (18 May 1909)
Cite as: 1909 SC 1046, [1909] ScotCS CSIH_1, 1909 1 SLT 489

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18 May 1909

M'Conochie's Trustees

Lord Justice-Clerk.—In this case the question is whether the bequest is sufficiently definite. The decision turns upon a single word or phrase, and sometimes it is extremely difficult in construing such cases to come to a satisfactory conclusion. But in this particular case I do not find any serious difficulty, although the bequest is peculiarly expressed. It is a bequest giving the trustee a right to give money to certain “purposes” named. That of course is much more vague than a bequest giving money to certain

“institutions” of a particular character named. Certainly the clause itself does not read very intelligibly, because it directs the trustee to divide the residue as he should think fit among such purposes as he should select to be “the recipients” thereof. Now, there is a blunder in grammar there, because a “purpose” cannot be said to be a “recipient.” You may give money for a particular purpose, but a recipient must be somebody who will take charge of it for the purpose. The words of bequest are:—“To divide the same as he shall think fit amongst such educational, charitable, and religious purposes within the city of Aberdeen as he shall select to be the recipients thereof.” I find it impossible myself to read this as meaning that he is to select certain purposes which are combinedly educational, charitable, and religious. I take it that the only reasonable meaning of it is that the trustee shall select certain purposes (by which the testator must have meant certain established purposes), which are educational or charitable or religious, not, of course, excluding any one which might combine all three features; but if the alternatives include the word “religious” then I think the case falls within the case of Grimond, although the word used there was “or.” I think this cannot be read truly in any other sense than as a bequest to each of these purposes as distinguished from the other, there being a power, according to the intention of the testator, to select among them. But then, “religious” has been held not to be a definite object according to the decisions, and if you have a bequest which includes the word “religious” as one of the objects to which the money may be applied, that bequest is bad from vagueness and uncertainty. That being so, I have come to the conclusion that we must answer this question in the affirmative.

Lord Low.—I have come, with much hesitation, and with some regret, to the same conclusion. I think it is conceded that if the clause in the settlement can fairly be read as meaning that any purpose to which the fund is devoted must be at the same time educational and charitable and religious the bequest is good. Now, if what had been directed had been to divide the fund among such educational, charitable, and religious institutions as the trustee might select, I think that the direction might fairly have been construed as meaning institutions which combined all three characteristics, and the case would then have been on all fours with the case of Cobb's Trustees, which was decided in this Division. But although that might be what the testator had in his mind, the word which he uses is not “institutions” but “purposes.” The trustee is directed to divide the residue amongst such educational, charitable, and religious purposes as he thinks fit. If you are told to divide a fund among three classes—A, B, and C—I think that means that you must give part of it to each of the three classes, and that the direction is not confined to an object which combines the characteristics of all of them. Therefore I have, as I said, come—although with reluctance—to the conclusion that the bequest cannot be sustained.

Lord Ardwall.—I concur. It has been repeatedly said that no one case regarding the construction of a will can be held to rule another, unless the words in both wills are identical. Now, here, the words of the bequest are not identical with those under consideration in any of the cases which have been quoted to us. I think, therefore, we must endeavour to find what is the natural meaning of this clause read as any ordinary English sentence would be read. In the first place, we have a direction to divide the residue “amongst” certain “purposes.” Now, that means, to my mind, that there are different purposes amongst which it is to be divided, and we find it is distinctly set forth what these purposes, or rather I should say three classes of purposes, are. They are educational purposes, charitable purposes, and religious purposes. As I read this will, the trustee is directed to divide the residue amongst these three classes of purposes, and he would carry out this will properly, assuming the direction to be valid, by selecting one or more educational purposes, one or more charitable purposes, and one or more religious purposes to benefit by the bequest of residue. That being so, it follows that we have here a bequest which is void from uncertainty, because, in addition to charitable purposes, there are introduced as objects to be benefited educational purposes and religious purposes, and the direction to divide a certain sum of residue amongst purposes of these descriptions at a trustee's discretion is void as being vague and indefinite.

LORD DUNDAS was sitting in the Extra Division.

[1909] SC 1046

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