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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hay's Trs v Baillie [1908] ScotCS CSIH_1 (18 July 1908)
Cite as: 1908 SC 1224, (1908) 16 SLT 294, [1908] ScotCS CSIH_1

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18 July 1908

Hay's Trustees

Lord M'Laren.—The question we have to consider under this reclaiming note relates to the validity and effect of Mrs Hay's residuary bequest, under which her trustees are directed to apportion and pay over the free residue “to or amongst such societies or institutions of a benevolent or charitable nature” as the trustees may approve, but to the exclusion of Roman Catholic institutions.

I desire to concur in the opinion which will be delivered by Lord Dundas, in which the authorities bearing on this interesting question are fully considered, and shall only add a short statement of my view as to the principles which I think should be applied in the construction of bequests of this character. And first in order, though not in importance, I may say that in many cases relating to special and general legacies, to ademption and the interpretation of ambiguous words of bequest, this Court has been aided by the consideration of the decisions of' the English Courts, where it appeared that the principles which governed these decisions were such as we should ourselves apply; and in this case counsel have very properly and usefully brought under our notice the English decisions which may throw light on the question before us. It is a principle common to the two systems of law that bequests for charitable purposes should receive an indulgent and favourable criticism with a view if possible of giving effect to the testator's benevolent intentions. In the development of this principle the rule against giving effect to bequests of a wholly undefined character has been relaxed in favour of charities. I note in passing that it appears from the reported cases that the Courts of England in considering whether a particular bequest falls within the description of charity have been guided by the statute of Elizabeth, and the judicial interpretation that has been put on the expressions “charitable” or “charity” as there defined. But the range of objects or purposes which have been considered to be charitable under the law of England is so wide that I think it may fairly be said that in the interpretation of bequests for charitable purposes the Courts of both countries may be taken as dealing with questions which are substantially the same.

The present case, however, does not raise any question as to the meaning of the word “charitable,” because the direction is to apportion and pay the residue of the testator's estate “to or amongst such societies or institutions of a benevolent or charitable nature in such proportions” as the trustees in their discretion shall think proper. Now, it is settled by a series of decisions of the highest authority that a bequest to charitable institutions or for charitable purposes to be administered by the testator's trustees is a valid bequest, and these decisions will govern the present case unless the gift to the institutions which are there described is invalidated by the association of the word “benevolent” with “charitable.”

In the arguments which were addressed to us the question was discussed whether the determination of this question would be different in the case of a bequest to benevolent and charitable institutions, and in the case of a bequest to benevolent or charitable institutions. There are cases where the use of “and,’ as contrasted with “or” may be important, but I do not think that this is one of them.

If in the present case we substitute “and” for “or” it is clear enough, and indeed it was not disputed, that the bequest would be valid, because there could be no difficulty in finding institutions which were alike benevolent and charitable in their objects; and, being charitable, such institutions would have the benefit of the rule that a charitable bequest to be administered by trustees would not fail for want of further specification. But it is impossible to state this proposition without seeing that in such a case the real ground of decision is that “charitable” is the determining characteristic, and that the addition of the word “benevolent” neither enlarges nor restricts the scope of the bequest.

In contrast to the case here put I will suppose the case of a bequest for charitable and public objects. Now a bequest for charitable or public objects has been held to fall within the rule against indefinite bequests, because the trustees might apply part of the money to public objects which are undefined; and I have difficulty in admitting that the use of the word “and” would make the bequest any better, because there are two objects, the one undefined and the other in contemplation of law sufficiently defined, and the trustees in fair administration would be bound to allot something to each class. I should therefore deprecate the use of a canon of construction which would make the validity or invalidity of the bequest to depend on the casual use of the word “and” in place of “or,” or the use of the word “or” in place of “and,” without any evidence from the context that the testator attached importance to the use of the conjunctive or disjunctive particle.

I agree with Lord Dundas that the true question in the present case must be, did the testator mean two classes of objects, one of which was not charitable in its nature, or did he mean one class which he described indifferently by the adjectives benevolent and charitable? If this is the question, I think it admits of only one answer. “Institutions of a benevolent nature” is, as I think, just a periphrasis for “charitable institutions.” It may be that in a somewhat strained interpretation of “benevolent” we might conceive of an institution to which the word benevolent would apply, and which would not fall within the limits of charitable gift. But then we call in aid the principle of the benignant construction of charitable bequests. A construction which calls in aid the almost impossible case of a class of benevolent institutions which are not charitable, amongst which the residue is to be partitioned, and that for the purpose of defeating the express testamentary intention, would not, in my judgment, be a benignant or even a reasonable construction. But, applying the true canon of construction applicable to bequests of this description, I come without difficulty to the conclusion that the testator meant to use “charitable” and “benevolent” as equivalent terms. On this construction the use of the word “or” is grammatically correct, because it implies that, whether you describe the objects of the bequest as “benevolent” or “charitable,” the meaning is the same, and therefore the gift is not void in respect of uncertainty.

Lord Kinnear.—I am of the same opinion. We have, in all cases of the validity of a bequest, two questions to consider—in the first place, what is the rule of law by which we ought to be governed in determining the question of validity? and, secondly, what is the true meaning of the particular will which we have to construe? It is only with reference to the first of these questions that, in my opinion, we are bound, or greatly aided, by previous decisions. What the law is must be determined in accordance with the authorities by which we are bound. What the true meaning of a particular testator is we must ascertain for ourselves, by reading the language which he or she has used, and putting upon it its natural meaning, without any special reference to what previous judgments have held to be the meaning of other testators using different language.

Now, upon the first of these two questions, I think it is clearly settled in the first place that a testator cannot commit to trustees the power of making a will for him. He must make the will for himself, and therefore he must define sufficiently the persons or purposes which he intends to be the objects of his bounty, to enable the trustees to carry out the intention that he has expressed, instead of committing to a trustee an unlimited power to find out objects of bounty for himself. I take it to be settled, however, in the law of Scotland, that a bequest will be valid if a testator points out to his trustees a definite class of persons or objects to be favoured, although he leaves the trustee to select individuals within the class. It is probably a question of degree whether the circumscribing line by which he defines this class is sufficiently distinct or not, but, of course, I concur with what your Lordship has said, that we must take it as now settled that where a trustee is directed to select among charitable objects, there is sufficient definition to enable him to carry out the intention of the testator.

So far I think the law is clear, but then the question comes to be whether the objects of the bounty of this particular testator are sufficiently defined to enable a trustee of ordinary common sense and ordinary familiarity with the business of life to satisfy himself that he is selecting among the class pointed out to him by the testator. It is conceded that if this testatrix had directed her trustees to apportion her residue among societies and institutions of a charitable nature, such as they should think proper in their discretion, but excluding societies or institutions connected with the Roman Catholic Church, that would have been a good bequest, but then it is said to be an invalid bequest because in place of confining herself to the word “charitable,” she has used the words “of a benevolent or charitable nature.” The real question is, whether upon the construction of the will that is a wider class of purposes than the word “charitable,” taken alone, would have defined. It appears to me that the question whether this testatrix really meant “You are to select between two distinct classes of institutions, charitable institutions on the one hand, and a different class of institutions altogether, which I call benevolent, on the other hand,” is not a question upon which previous decisions can guide us at all. I think the question is—What did the testatrix really mean? and I do not think that is to be ascertained by a strict grammatical analysis of the words she has used. Taking the whole will—taking the particular direction for the distribution of the residue with reference to its context, the question is—What did this testatrix mean?—and I confess that I have no doubt that by “charitable or benevolent,” she meant one thing, and not two things. The whole difficulty arises from what I think is a mere redundancy of expression, and we had cited to us several examples of a similar redundancy, in the expressions, not of testators, but of learned Judges who were discussing this kind of question. I do not think that, in ordinary language, when a testator describes institutions of a charitable or benevolent character, she means two different kinds of institutions, which she distinguishes from one another; and if not, I think that she has given a sufficiently definite description of the class of institutions which she intends to favour, to enable trustees of requisite common sense to carry out her intention.

I wish to add that I also, like Lord M'Laren, have had an opportunity of reading Lord Dundas's opinion, and I entirely concur in the view which he has expressed.

Lord Dundas.—I am of the same opinion, but I should like to add some words of my own, because the case is an interesting one, and because we are differing from an elaborately expressed opinion of the Lord Ordinary.

The decision of the case must really depend on the intention of the testatrix—to be ascertained from the language she has used; and the Court will incline, if possible, to support the will rather than to set it aside as void by reason of uncertainty. Now, I think, as matter of ordinary construction, the words “benevolent or charitable” should be read, not as referring to two distinct and alternative classes of “societies or institutions,” but rather as expressing, in an amplified and perhaps redundant fashion, the “nature” or quality which the societies or institutions must possess in order to come within the scope of the delegated bounty of the testatrix. Of the words “benevolent” and “charitable,” the former is perhaps the more comprehensive, but they are closely cognate, and obviously have much in common. I observe that Dr Johnson, in his Dictionary (1755, folio ed.), defines “benevolent” as “kind, having goodwill or kind inclinations;” and “charitable” as “(1) kind in giving alms, liberal to the poor; (2) kind in judging of others; disposed to tenderness—benevolent.” In Pemsel's case, Lord Watson (at p. 558) and Lord Herschell (at p. 572) seem to define “charitable” as being practically synonymous with “benevolent.” At all events, I think the two words are not, in the will under consideration, used as alternatives, but may fairly be read exigetically, as if the testatrix had said “of a benevolent—by which I mean of a charitable—nature.” I am unable to figure any kind of institution which should be of a charitable but not of a benevolent nature; nor—though the aid of the Bar was invoked at the discussion—was any satisfactory example of the converse proposition forthcoming. If the construction suggested is correct, the present case is at once differentiated from cases like Blair and Grimond, where the word “charitable” was used as an alternative to “public” and to “religious” respectively; and the will was in each case held to be void from uncertainty, because the second adjective was of so vague and indeterminate a character as to be incapable of execution. With these cases one may contrast Miller v. Black's Trustees,

where the words were “benevolent and charitable purposes”; and Lord Brougham, in holding the gift valid, observed—“Suppose we read ‘and’‘or,’ the authorities in the Scottish law do not entitle us to hold that this is so uncertain as to be void”; and the opinions of the learned Judges—especially that of Lord Trayner—in Cobb's Trustees, where a bequest “to such useful, benevolent, and charitable institutions” as the trustees in their discretion might think proper, was sustained. The present case seems to me to fall well within the lines desiderated by the Lord Chancellor in the recent case of Murdoch's Trustees. There the residue was directed to be employed in the relief of persons who, with other qualifications, had “shewn practical sympathy in the pursuits of science.” The validity of the bequest was sustained. Lord Loreburn, after emphasising the rule that a benignant construction will be placed upon charitable bequests, said—“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.” I do not think men of common sense would have difficulty in apportioning Mrs Hay's residue among societies or institutions of the class described by her, if the construction of her language which I have indicated is the natural and proper one.

I should be prepared to rest my decision upon the simple grounds now stated. But the Lord Ordinary has reached an opposite conclusion. His Lordship's opinion has been largely influenced by a consideration of certain English cases to which he refers. It seems, therefore, proper to make some general observations in regard to these cases. Most, if not all of them, have been cited in argument in the recent decisions in Scotland—e.g., Cobb's Trustees and Grimond. For my part I think a real danger may arise when this branch of the law is being considered, if Judges in Scotland follow English decisions implicitly and without careful scrutiny, or Judges in England so accept Scots cases. I am not sure that there is any real difference in principle between Scots and English cases on this question, because under both systems of law the rule against giving effect to an otherwise indefinite bequest is only relaxed in favour of “charitable “bequests. But, as observed by Lord Davey in Blair's case, “there is no doubt that the English law has attached a wide and somewhat artificial meaning to the words ‘charity’ and ‘charitable,’ derived, it is said, from the enumeration of objects in the well-known Act of Elizabeth, but probably accepted by lawyers before that statute. In the law of Scotland there is no such technical meaning attached to the words.” I gather that the English Courts are in use to construe such words as, e.g., “benevolent” or “philanthropic”—occurring in a will in juxtaposition with “charitable”—in the light and by the standard of the peculiar meaning which the latter word has acquired in England. I think it is the case that the existence of the distinction pointed out by Lord Davey has resulted in decisions being pronounced by the English Courts which are not in harmony with the law of Scotland. A striking example is found by comparing the English case of White with the

Scots case of Grimond. The two cases cannot stand together. Yet Grimond is undoubtedly Scots law, as I presume White to be good law in England. This is dealt with by Lord Moncreiff, whose opinion, differing from the other Judges of the Second Division, was expressly approved by the House of Lords. I prefer, for my own part, to determine the question raised in this case upon a construction of the language used by the testatrix, with such light as can be obtained from decisions in Scots cases, which in this branch of the law afford, to my mind, safer confirmation of one's opinion than those pronounced by English Courts, unless it is clear that the latter were not influenced by the special meaning attached in England to the word “charitable.”

For the reasons stated, I am of opinion with your Lordships that the Lord Ordinary's interlocutor ought to be recalled, and the first branch of the claim for the trustees and executors of Mrs Hay sustained. It may be proper to observe that, since that interlocutor was pronounced, three important cases have been decided upon this branch of the law—two of them by the House of Lords—viz., Murdoch's Trustees, Allan's Executor, and Dick's Trustees.


[1908] SC 1224

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