Scottish Court of Session Decisions

Lord President.—The material facts in this case are, that the late Dr John Grigor died on 18th October 1886, leaving a trust-disposition and settlement dated 20th November 1880, and a codicil dated 30th December 1885, so that he was considering his testamentary arrangements down to a period of less than a year prior to his death. He left a sum of money to his trustees for the purpose of founding the “Grigor Medical Bursary,” and he declared that the recipient of the bursary was to be “a young man, a native of the county of Nairn, whose parents are unable to defray the cost of a medical education, to enable such young man to pursue his medical studies at the University of Edinburgh, to be tenable during the curriculum of study.” The object of his bounty is unequivocally declared to be “a young man.”

In 1893, owing to the difficulty experienced by the trustees in getting “natives” of the county of Nairn to come forward as applicants for the bursary, the benefits of the bequest were extended by this Court so as to include residents in, as well as natives of, the county. The proposal now is, that the benefits should be further extended, so as to include young women, either, I suppose, natives of or residents in, the county of Nairn, to assist them in pursuing their medical studies in Edinburgh. That is a very great change, for if Dr Grigor had intended that the benefit of his bequest should be extended to young women, he had the opportunity of saying so before his death, and we find that he did not do so. I cannot think that the difficulty of getting young men to come forward as candidates is a sufficient reason to justify us in authorising so great a change as is here proposed.

The trustees only state that they experience difficulty in getting suitable male candidates; there is no allegation that male candidates cannot be obtained, or that no more young men from the county of Nairn contemplate entering the medical profession.

I suppose that if this petition is refused, and if in consequence of the dearth of male candidates the bursary remains vacant for a time, the result will be that the income of the trust fund will be accumulated and added to the capital, and that thereby the value of the bequest, when an eligible male candidate appears, will he increased. It is not as if our refusal of the prayer of the petition would cause the scheme to become nugatory or inept. On the whole matter, I do not think that any sufficient reasons have been laid before us to induce us to sanction the drastic change which is here proposed.

Lord Adam.—I concur.

Lord M'Laren.—I concur with your Lordships. It is necessary carefully to distinguish between the statutory powers conferred upon the Court under the Endowments Commission and the powers of the Court under its ordinary jurisdiction. I only know of two cases for the exercise by the Court of its common law powers. One is where the founder of a charity or other endowment only expresses his purpose in general terms, and where it is thus necessary to have a scheme for its administration. The other is where the object of a charitable trust has failed; where this has happened the Court has on rare occasions sanctioned the application of the funds to objects nearly resembling those selected by the truster. In the latter case I doubt if a petition is the appropriate mode of invoking the jurisdiction of the Court; I rather think some declaratory process would be necessary.

The present case does not, however, fall under either of these categories. What is proposed is not merely an administrative variation. It is proposed to admit women to the benefit of an endowment expressly given to men, and given by a member of a profession not very friendly to the admission of women within its ranks. Nor can it be said that the admission of women is necessary for administration, because the only result of refusing the application would be to accumulate the funds and to add to the capital, until a candidate comes forward falling within the class benefited by the trust as it stands. That would not be in any way inconsistent with the testator's object. For these reasons I think the application should be refused.

Lord Kinnear.—I agree. I think we should be straining the powers of the Court in the administration of charitable bequests unreasonably if we were to comply with the petitioners' demand, because what we are asked to do is to extend the benefits of a recent bequest to persons who are not the objects of the testator's bounty. I also agree with the view indicated by Lord M'Laren, that if this application were presented on the footing that this bequest had become practically unworkable owing to a change in the circumstances, that would raise an entirely different question. I do not say that we should have solved it in the manner proposed in this petition, but the question would have been entirely different. But nothing of that kind is said. Even if we assume that candidates do not come forward on every occasion on which this bursary is vacant, it does not follow that the testator's bequest is not being worked in the most suitable and convenient way. It is the case with many bursaries that from time to time suitable candidates fail to present themselves, but the remedy is, that the funds are administered in the meantime by the University in accordance with statutory regulations for the purpose intended by the founder of the bursary. The ground averred here is not even that candidates do not come forward; all that is said is that the trustees experience difficulty in getting suitable male candidates for the bursary, and as the medical degree is now open to women, it is expedient that the bursary should also be open to them. I cannot read that as an averment that the trustees find it impossible to carry out the testator's wishes as expressed in his settlement. It is simply the expression of their opinion on a general question, that since medical degrees are now open to women, medical bursaries ought to be open to them also, although they may have been intended by the founder for young men only. That may, or may not, be reasonable, but it is not a ground on which we interfere with a testator's directions. I therefore agree with your Lordships that the petition should be dismissed.