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HOUSTON AND OTHERS
BURNS AND ANOTHER
HOUSE OF LORDS
1918 Jan. 29.
 A.C. 337
BEFORE THEIR LORDSHIPS:
LORD FINLAY L.C.
LORD ATKINSON, and
LORD SHAW OF DUNFERMLINE.
CHREE, K.C. (with him M. P. FRASER) (both of the Scottish Bar), for the appellants.
CLYDE, K.C. (Lord Advocate and Dean of Faculty) (with him J. W. FORBES (of the Scottish Bar)), for the Crown.
Agents for appellants: GRAHAMES & CO., for MONCRIEFF, WARREN, PATERSON & CO., WRITERS, GLASGOW, and WEBSTER, WILL & Co., W.S., Edinburgh.
Agents for respondent, the Lord Advocate: Treasury Solicitor, for JAMES ROSS SMITH, S.S.C., EDINBURGH
ESTATE ADMINISTRATION: Wills and Trust – Charitable Bequest – Uncertainty – “Public, benevolent, or charitable purposes” – Limitation to particular Locality.
NONPROFIT/CHARITY LAW: Charitable bequest- validity of a trust disposition and settlement directed to be applied for “such public, benevolent, or charitable purposes” – how constructed by court
CHILDREN AND WOMEN:- Women and Inheritance/ Succession – Female testatrix without heir – Validity of charitable bequest of residue of estate made for the benefit of her parish or its neighbourhood – Whether direction to her trustees is void for uncertainty
HISTORY AND SUMMARY OF CASE
A bequest for public purposes to be selected by a third party, though limited to a particular locality, is void for uncertainty.
Blair v. Duncan  A. C. 37 applied.
Dictum of Lord Romilly in Dolan v. Macdermot (1867) L. R. 5 Eq. 60 overruled.
A testatrix by her trust disposition and settlement directed her trustees to apply the residue of her estate “for such public, benevolent, or charitable purposes” in connection with a particular parish as they should think proper:-
Held, that the words describing the purposes were to be read disjunctively, and that for this purpose the punctuation of the clause might be regarded; and that the bequest was void for uncertainty.
Decision of the Second Division of the Court of Session in Scotland affirmed.
APPEAL from an interlocutor of the Second Division of the Court of Session in Scotland recalling an interlocutor of the Lord Ordinary so far as appealed from.
Mrs. Annabella Turnbull, widow of the Rev. Thomas Hardie Turnbull, one of the ministers of the parish of Lesmahagow, by her trust disposition and settlement dated June 2, 1894, directed her trustees, in the events which happened, to apply the residue of her estate “for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper.” The testatrix died on October 23, 1894.
The question for determination upon the appeal was whether this bequest was void for uncertainty. The Lord Ordinary (Lord Ormidale) held that the bequest was not void; the Second Division, by a majority (the Lord Justice-Clerk and Lord Salvesen, Lord Dundas dissenting) held that it was.
The first-named respondent did not appear upon the appeal. The other respondent, the Lord Advocate, represented the Crown as ultimus haeres, the testatrix having left no heirs who were entitled to succeed to her estate ab intestato.
Chree, K.C. (with him M. P. Fraser) (both of the Scottish Bar), for the appellants.
This residuary bequest is not void for uncertainty. Blair v. Duncan (1) decided that a bequest “for such charitable and public purposes as my trustee shall think proper” without any restriction as to locality was too vague, and the absence of such restriction was relied on by Lord Robertson, in whose judgment Lord Shand concurred, and by Lord Brampton. That case has no application where the operation of the gift is limited to a particular locality. Such a bequest stands on a different footing and can be carried into effect by the trustees without any difficulty. It is competent to a testator in the disposition of his property to select particular classes of individuals or objects and to empower his trustees after his death to apply any part of his property to any particular individuals or objects in that class. All that is 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: Hill v. Burns (2); Crichton v. Grierson(3); Dundas v. Dundas (4); Dolan v. Macdermot (5); Weir v. Crum-Brown(6); Cleland’s Trustees v. Cleland (7); Allan’s Executor v. Allan(8); Hay’s Trustees v. Baillie (9); Mackinnon’s Trustees v. Mackinnon(10); M’Phee’s Trustees v. M’Phee. (11) [He also discussed and distinguished Grimond v. Grimond (12), Shaw’s Trustees v. Esson’s Trustees(13), and M’Conochie’s Trustees v. M’Conochie (14), in all of which cases the gift was held bad.] See also Goodman v. Saltash Corporation (1), per Lord Cairns. In Scotland there is no Statute of Elizabeth, and the Scottish Courts have not defined the term “charitable bequest” with the same precision as the English: Hill v. Burns (2); Crichton v. Grierson(3); Magistrates of Dundee v. Morris. (4) [Upon this point he also referred to Baird’s Trustees v. Lord Advocate (5) and Commissioners for Special Purposes of Income Tax v. Pemsel. (6)] But both in England and in Scotland bequests of a charitable nature are to be construed benevolently: Magistrates of Dundee v. Morris (7); Weir v. Crum-Brown.(8) In this bequest the word “public” should be read as qualifying “benevolent” and “charitable,” so that it is a bequest to benevolent and charitable purposes of a public nature. That at least is a possible construction, and, if so, having regard to the character of the bequest, it ought to be adopted, ut res magis valeat quam pereat.
Clyde, K.C. (Lord Advocate and Dean of Faculty) (with him J. W. Forbes (of the Scottish Bar)), for the Crown.
The local limitation does not here sufficiently define the class to be benefited: M’Conochie’s Trustees v. M’Conochie (9); Shaw’s Trustees v. Esson’s Trustees. (10)
Chree, K.C., replied.
The House took time for consideration.
LORD FINLAY L.C. My Lords, the question in this case is as to the validity of a clause in the trust disposition and settlement of Mrs. Turnbull, dated June 2, 1894. The testatrix directed that the residue of her estate should be disposed of as she should direct by any writing or codicil under her hand. The clause then proceeded as follows: “And failing any such then I hereby direct my trustees to hold such residue until such time or times as they see fit and apply the same for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums or under such conditions as they in their discretion shall think proper.”
No direction in writing or by codicil was given by the testatrix, and the question arises whether the bequest for public, benevolent, or charitable purposes is good. It has been settled by a decision of this House (Blair v. Duncan (1)) that a bequest “for such charitable or public purposes as my trustee thinks proper” is void for uncertainty. In such a clause the words “charitable or public” are used disjunctively, and, as Lord Shand says, “a bequest for public purposes to be taken by a person or persons named by the testator, unlike a bequest expressly limited to a charitable purpose, is not sufficiently definite, but is too vague and wide to form the subject of a valid bequest.” While “charitable purposes” have a defined meaning both in England and Scotland, “public purposes” are in their nature entirely uncertain. The same rule has been applied in Grimond v. Grimond (2), reversing the decision of the Court of Session (3), in the case of a bequest to “such charitable or religious institutions or societies” as the trustees might select. The term “religious” was held to be too vague, and as the words were to be read disjunctively the bequest was void on the principle which was applied in Blair v. Duncan. (1)
Mr. Chree, for the appellants in the present case, sought to distinguish, these authorities on the ground that there was no local limit in the bequests there, while in the present case the purposes are to be in connection with a particular parish or the neighbourhood. It is quite true that the absence of any restriction as to locality is adverted to in some of the judgments in Blair v. Duncan (1) as adding an additional element of vagueness to the bequest. Lord Robertson says: “It seems to me that this testatrix has done nothing like selecting a particular class or particular classes of objects. She excludes individuals, and then leaves the trustee at large, with the whole world to choose from.
There is nothing affecting any community on the globe which is outside the ambit of his choice.” But while this consideration emphasized the vagueness of the bequest in the particular case, it was not really necessary for the decision, which rests upon the vagueness of the purpose, whatever the locality within which the purpose is to be served.
This sufficiently appears from the judgments of Lord Halsbury, Lord Shand, and Lord Davey in Blair v. Duncan (1), and the vagueness of the purpose itself, apart from locality, is pointed out in the clearest terms by Lord Robertson himself. The addition of a local limit might well make a difference in favour of a bequest if the bequest was in favour of institutions within a certain area, the particular institution to be selected by the trustee. This distinction is pointed out by Lord Stormonth-Darling in his judgment in Shaw’s Trustees v. Esson’s Trustees (2), where the whole subject is discussed in a very lucid and valuable judgment. Mr. Chree relied in support of his contention upon the case of Dolan v. Macdermot (3), where the Master of the Rolls, Lord Romilly, after saying that a bequest for such public purposes as the trustees select would be bad, goes on to say that if a place is connected with the gift, so that the public purposes must be for the benefit of the place specified, then it is good. I do not think this dictum is correct.
The decision of Lord Romilly was affirmed on appeal (4) by Lord Cairns L.C., but not on this ground.
It follows from the decision to which I have referred that if the clause is to be construed as being for such public or benevolent or charitable purposes in connection with the locality as the trustees think proper it would be bad. The purpose is too vague, and the vagueness of the purpose is not cured by the specification of the locality to be benefited. It was contended, however, on behalf of the appellant that the clause should not be read as applying to public or benevolent or charitable purposes, but that on its true reading it was for the benefit of benevolent or charitable purposes of a public nature in connection with the parish, and that so construed it would be good, as “benevolent or charitable purposes” would be held to be charitable purposes. It appears to me that without the punctuation which appears in the will as printed in the appendix this is quite a possible construction, and where words are ambiguous a construction should be adopted which will not make the bequest void. But we are informed that the comma after the word “public” and that after the word “benevolent” appear in the original will, and this points plainly to the conclusion that “public” was intended as an alternative to “benevolent or charitable.” In other words, that the clause must be read disjunctively.
The authorities as to the effect to be given to punctuation in a will are not quite uniform. In Sanford v. Raikes (1) Sir W. Grant says: “that it is from the words, and from the context, not from the punctuation, that the sense of a will must be collected”; and in Gordon v. Gordon (2) Lord Westbury said obiter that he concurred in the opinion so expressed by Sir W. Grant. But there are opinions the other way. Wood V.-C. (3), as reported in a note to Walker v. Tipping (4), Sir John Romilly M.R. in Gauntlett v. Carter(5), and Knight Bruce L.J. (see the note to Manning v. Purcell (6) expressed the opinion that the punctuation in the original will might be looked at for the purpose of helping in its construction. I think that for this purpose the punctuation of the original will may be looked at, and, reading this clause as punctuated, the words “public, benevolent, or charitable” are clearly to be read disjunctively. It follows that the bequest is bad for uncertainty.
In my opinion the appeal should be dismissed.
(7) My Lords, by the law of Scotland, as by that of England, a testator can defeat the claim of those entitled by law in the absence of a valid will to succeed to the beneficial interest in his estate only if he has made a complete disposition of that beneficial interest. He cannot leave it to another person to make such a disposition for him unless he has passed the beneficial interest to that person to dispose of as his own. He may, indeed, provide that a special class of persons, or of institutions invested by law with the capacity of persons to hold property, are to take in such shares as a third person may determine, but that is only because he has disposed of the beneficial interest in favour of that class as his beneficiaries. There is, however, an apparent exception to the principle. The testator may indicate his intention that his estate is to go for charitable purposes. If these purposes are of the kinds which the law recognizes in somewhat different ways in the two countries as charitable, the Courts will disregard a merely subordinate deficiency in particular expression of intention to dispose of the entire beneficial interest to a class, and will even themselves, by making a scheme of some kind, give effect to the general intention that the estate should be disposed of for charitable purposes. To the expression “charitable” the Courts respectively of the two countries attach the meanings which were discussed in this House in Commissioners for Special Purposes of Income Tax v. Pemsel. (1) It is not necessary in this appeal to define the significance of the expression, for all that is necessary on this occasion is to point out that by other decisions of this House, such as Blair v. Duncan (2), it has been settled that the expression “public purposes” has a wider meaning than “charitable purposes,” and includes much that does not fall within the latter expression. To take the illustration given by Lord Robertson in advising this House in Blair v. Duncan (2), if a trustee handed over a sum of money to an election fund or a Yeomanry regiment, he would be giving it for a public but not for a charitable purpose. Trusts for charities have been regarded with favour as constituting a particular class recognized as sufficiently definite to enable a testator to leave his property on such a trust, and to empower a third person to determine the shares in which those falling within the class are to participate in his bounty. Trusts for public purposes have not been regarded by the Courts as constituting a class so particular and definite as to be capable of taking under an analogous disposition.
In the case before us the direction to the trustees is to hold the testator’s residue “for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper.” Notwithstanding the reference to Lesmahagow or its neighbourhood, the purposes are not the less of the very general and indefinite character which is all that the word “public” connotes. And I am of opinion that the word “or,” especially as the commas which follow appear in the original will, shows what the testatrix intended was to make a disjunction. The disposition is therefore inoperative as regards the residue, for the trustees are not bound to distribute the property among objects restricted to any defined class which can form a valid object of a disposition.
I think that the appeal must therefore be dismissed.
My Lords, having regard to the wording and punctuation of the clause in the will of the testatrix, upon which the question for decision in this case turns, I do not think it can be legitimately construed as if it ran “Public purposes, either benevolent or charitable,” or “purposes benevolent or charitable of a public character.” I think the Lord Justice-Clerk was right in assuming that the clause meant the same thing as if it ran thus, “Public purposes or benevolent purposes or charitable purposes”; the conjunction “or” being in each case disjunctive. If the clause stopped there and contained no reference to the parish of Lesmahagow or its neighbourhood, it would appear to me to be clear, on the authority of Blair v. Duncan (1), that the bequest would be void by reason of the vagueness and uncertainty of the words “public purposes,” no particular class or particular classes of individuals or objects being defined or precisely indicated from amongst which the trustees are empowered to make their selection of the recipients of the bounty of the testatrix. The bequest therefore does not satisfy the test suggested by Lord Lyndhurst in Crichton v. Grierson. (2)
No doubt in Blair v. Duncan (1) there was no indication of a defined area within which the public purposes were to be comprised. Thevtestatrix, to use Lord Robertson’s words (3), “excludes individuals, and then leaves the trustee at large, with the whole world to choose from.
There is nothing affecting any community on the globe which is outside the ambit of his choice”; but the vast extent of this “ambit of choice” was not the only thing which, in the opinion of the House, rendered the bequest in that case void. It was rendered void, according to Lord Halsbury, because a disposition which left it to the trustee to determine what particular public purpose should be the object of the trust was too vague and uncertain for any Court, either in England or Scotland, to administer. And it was void, according to Lord Davey, because “public purposes” were not so within the description of a particular class of objects as to satisfy the test which Lord Lyndhurst suggested. The purposes which would come within the description were, as he pointed out, vast in number, and were sometimes of a kind which would have reduced the gift in the case before him to an absurdity. It is the insufficiency of these words, “public purposes,” because of their vagueness and uncertainty, to identify and fix the limits of the class of individuals or objects from which the trustees are to choose that renders void a bequest for “public purposes.”
That is their weakness, and that weakness is not cured by coupling them with a definition or description of the physical area within which the public purposes are to be comprised. It may possibly be that the words “public purposes” are more vague and uncertain where the trustees have the whole world as the ambit of choice than where the ambit is limited to a much smaller area, but they are sufficiently vague and uncertain, even if applied to parishes, to render them insufficient to define and fix the limits of the class or classes from which the trustees are to make their selection.
My Lords, I do not think that this case has the slightest resemblance to those in which property is vested in trustees to be applied for the support or benefit of such institutions of a particular class as may be in existence, or in the course of creation, in any given town or area at the time at which the will speaks. There is no vagueness or uncertainty in such cases at all. The class from which the trustee is to make his choice can be at once ascertained and identified; but if, as in the case of Shaw’s Trustees (1), the trustees are not confined to applying the trust funds for the benefit of such institutions, objects, charitable, benevolent, or religious, as they may select from amongst those existing in the limited area at the time from which the will speaks, but are at liberty to institute within the area any new religious objects or purposes they think fit, the whole definition then becomes loose again. This was well pointed out by Lord Stormonth-Darling in his judgment in the latter case.
My Lords, it is, I think, fallacious to contend that because it must now be taken as established that, according to the law of Scotland, the Courts will give effect to a bequest for charitable purposes to be selected by a third party, they ought by analogy to give effect to a bequest for “public purposes” to be similarly selected. As Lord Davey pointed out in Blair v. Duncan (1), the expression “charitable” is not as vague as the word “public,” but, whether it be so or not, a long course of decision has established on the one hand the validity of a bequest for such charitable purposes as an individual should select, and on the other the invalidity of a similar bequest for such public purposes as an individual should select.
My Lords, I think the passage cited from the judgment of Lord Loreburn in the case of Weir v. Crum-Brown (2) by some of the judges in the Second Division has really been divorced from the particular matter to which it referred. Lord Loreburn said the recipients of the bounty were, amongst other things, to be widowers or bachelors of fifty-five years of age or upwards, whose lives had been characterized by sobriety and other specified virtues. They were to be indigent, a provision which stamps the bequest as charitable. These conditions were not really canvassed in argument, and need not be further considered, for no one of them is such as to impart to the bequest an uncertainty which will disentitle it in law. The only point seriously made against the contested clause in that will was that the recipients of the charity were to be persons who have “shown practical sympathy in the pursuit of science.” Lord Loreburn then deals with the criticisms made by counsel on this particular clause, and in reference to them makes use of the language quoted. Lord Macnaghten deals with the same clause. He shows that the words “science” is by no means a word of a definite or particular meaning; that there are many enactments in favour of institutions for the advancement of science, and that the generality of the word had never prevented the Court from applying to the particular case before it the provisions of the Act under consideration. As to the words “practical sympathy,” he said, though not happily chosen, they are perfectly intelligible; that the wish of the testator was to help those who were in need of help and who may have done something, much or little, in the way of promoting some branch of science. Lord Robertson, after saying that the case was perfectly clear, proceeded to say (1): “If it is said of any one that he has shewn practical sympathy in the pursuits of science, this is merely a roundabout way of saying that he has helped the pursuits of science; just as to show practical sympathy in A.B. means to help A.B. Again, the word ‘science’ embraces a wide but perfectly ascertainable range of subjects. Accordingly I consider the meaning of this testator to be plain and intelligible.”
I do not think it is legitimate to treat Lord Loreburn’s observations 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. I think the appeal fails, and should be dismissed.
LORD SHAW OF DUNFERMLINE.
My Lords, by the trust settlement of Mrs. Turnbull she directed her trustees to hold the residue of her estate “till such time or times as they shall see fit and apply the same for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood, in such sums and under such conditions as they in their discretion shall think proper.”
The Lord Advocate maintains that this bequest is void from uncertainty, and that, as Mrs. Turnbull left no heirs entitled to succeed to her property ab intestato, the residue thereof falls to the Crown as ultimus haeres.
Mr. Chree, in his admirable argument, admitted that a bequest “for such public, benevolent, or charitable purposes” as the trustees might select would, if these purposes were construed disjunctively, be void. This admission was inevitable in the state of the authorities. These need not be resumed. Blair v. Duncan (2) and Grimond v. Grimond (3) are directly in point.
But, it was suggested, the words “public, benevolent, or charitable purposes” can, and therefore should, be read conjunctively as meaning charitable purposes which are of a public and benevolent nature. So, it was said, the gift was only meant to be applied to charities, in which case the law would protect it as valid, and would write out therefrom benevolence or charities which were of a private nature. I cannot so read the words themselves. The punctuation also is against such a reading. I beg to give my special concurrence with the opinion just delivered from the woolsack on this latter subject. Punctuation is a rational part of English composition, and is sometimes quite significantly employed. I see no reason for depriving legal documents of such significance as attaches to punctuation in other writings. Taking the phrase as it is framed, it seems to me impossible to exclude from its range public purposes as such, and therefore public purposes which are not necessarily of a charitable character. Accordingly everything with a public purpose – say party political propaganda selected by the trustees for the advantage or proper enlightenment, in their opinion, of the parishioners of Lesmahagow – could be financed from the funds of Mrs. Turnbull’s trust.
In the eye of the law charity has this saving grace, that it is held to be by itself denominative of a distinct class. This extends far. But the law has taken a firmer and more rigorous line in regard to public or religious purposes. It demands from the testator the selection by himself of the particular classes of individuals or objects. The classes may be wide, but they must be definite and clear. The ambit of the classes being thus fixed by the testator, then a power of selection within that ambit may be entrusted to others.
Substantially, the argument of the appellants was that this law against uncertainty, now too well established to be shaken, does not apply in the present case, because the uncertainty and consequent ineffectiveness of the bequest are removed by the local limitations imposed. But, my Lords, local limitations expressed by the words “in connection with the parish of Lesmahagow or the neighbourhood” 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. The foundation of political clubs, schools of art, a zoological garden, or an astronomical observatory in Lesmahagow, along with a thousand other things in connection with that parish or its neighbourhood, might, in the trustees’ opinion, be excellent, but the bequest is void by reason of the uncertainty as to which of them or which class of them the truster meant to favour. This is exactly the reason which invalidates the bequest where there is no geographical reference.
Local limitations do come into play and make the bequest effective if and when they provide the means of identifying the particular objects or institutions which the testator has meant to benefit. I am of opinion that the local connection cannot limit the area of selection of purpose, unless the reference of the testator is to persons, societies, agencies, or institutions actually existing or projected to be established in a particular district.
I agree respectfully with the opinions in the case pronounced by the Lord Justice-Clerk and Lord Salvesen.
My Lords, I have had the advantage of seeing the opinion which has just been delivered by the noble and learned Lord on the woolsack; that opinion so clearly and precisely expresses the views I have formed on the case that it is unnecessary that I should trouble your Lordships with any further remarks.
Interlocutor of the Second Division of the Court of Session in Scotland affirmed and appeal dismissed.
January 29, 1918.
CITATION OF CASES REFERENCED – SEQUENTIALLY
(1)  A. C. 37.
(2) (1826) 2 Wils. & S. 80.
(3) (1828) 3 Wils. & S. 329, 338.
(4) (1837) 15 S. 427.
(5) L. R. 5 Eq. 60; affirmed (1868) L. R. 3 Ch. 676.
(6)  A. C. 162, 167.
(7) 1907 S. C. 591.
(8) 1908 S. C. 807, 814.
(9) 1908 S. C. 1224.
(10) 1909 S. C. 1041.
(11) 1912 S. C. 75.
(12)  A. C. 124.
(13) (1905) 8 F. 52.
(14) 1909 S. C. 1046.
(1) (1882) 7 App. Cas. 633, 650.
(2) 2 Wils. & S. 80.
(3) 3 Wils. & S. 329, 343.
(4) (1858) 3 Macq. 134, 154.
(5) (1888) 15 R. 682.
(6)  A. C. 531.
(7) 3 Macq. 134.
(8)  A. C. 162, 167.
(9) 1909 S. C. 1046.
(10) 8 F. 52.
(1)  A. C. 37, 42, 47.
(2)  A. C. 124.
(3) (1904) 6 F. 285.
(1)  A. C. 37, 42, 47.
(2) 8 F. 52, 54.
(3) L. R. 5 Eq. 60.
(4) L. R. 3 Ch. 676.
(1) (1816) 1 Mer. 646, 651.
(2) (1871) L. R. 5 H. L. 254, 276.
(3) In Oppenheim v. Henry, Jan. 18, 1853.
(4) (1852) 9 Hare, 800, 803.
(5) (1853) 17 Beav. 586, 589, 590.
(6) (1855) 24 L. J. (Ch.) 522, 523.
(7) Read by Lord Dunedin.
(1)  A. C. 531.
(2)  A. C. 37.
(1)  A. C. 37.
(2) 2 Wils. & S. 329.
(3)  A. C. 47.
(1) 8 F. 52.
(1)  A. C. 37.
(2)  A. C. 162, 166, 167, 169.
(1)  A. C. 169.
(2)  A. C. 37.
(3)  A. C. 124.#