Scottish Court of Session Decisions

On 29th July 1807 Dr Alexander Gray, H.E.I.C.S., died at Calcutta, leaving a last will and testament and codicil thereto, dated respectively 1st March 1807 and 18th

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July 1807, whereby he appointed certain executors and bequeathed £20,000 for the establishment of a hospital in the town of Elgin, the money to be under the control of a committee consisting of the member of Parliament and Sheriff of the county of Moray, Dr Thomas Stephen, who was appointed governor and physician of the hospital, the two clergymen of the town of Elgin, and the testators' executors. On the death of Dr Stephen the committee were authorised to appoint persons to be directors of the hospital. The testator further provided—“I do also invest the said Provost and Town Council of Elgin with a power to see that the above sum of Twenty thousand pounds sterling, and other sums I may appropriate to the said hospital, and for other purposes in the town of Elgin, be secured and laid out by the committee as above, and hereinafter directed.”

The testator further directed that when his wife's liferent interest in £7000 which he had settled on her came to an end, £4000 of this £7000 was “to be appropriated to the building of a new church in the town of Elgin, the said £4000 to be kept in the hands of my executors and the committee, invested by them on the British Funds, and to be remitted by instalments to persons they may entrust on superintending the building the said new church, under the inspection of the two clergymen of the town of Elgin; the interest of the foresaid £4000 sterling to be appropriated in the meantime to the use of the hospital, and until it shall be required for building the said new town church.” The testator further bequeathed the residue of his estate to the use of the foresaid hospital.

In December 1902 a special case was presented for the decision of questions which had arisen as to the disposal of the above sum of £4000. The first parties to the case were the trustees of Dr Gray's Hospital, Elgin, consisting of the member of Parliament for the county of Moray, the Sheriff of Inverness, Elgin, and Nairn, and the two collegiate ministers of the parish of Elgin. The second parties to the case were the managers and directors of Dr Gray's Hospital, Elgin. The third parties to the case were the Ministers and Kirk-Session of the parish Church, Elgin.

In the special case the parties, after giving the terms of Dr Gray's settlement, made the following statements:—6. The £4000 legacy to be appropriated to the building of the new church in the town of Elgin, or a sum representing it on a division of the £7000, of which it formed a part, was in or about the year 1817 invested in Consols under an order of the Court of Chancery, into which it had been found necessary to throw the estate for division. The said sum so invested still remains in Chancery under an account called the New Church Legacy Account. The amount of the legacy, owing to the price of Consols at the time of division, represented on 19thMarch 1836 the sum of £4996, 15s. 9d. 3 per cent. Consols, and this sum, together with £187, 19s. 3d. in cash, is still the nominal amount of capital standing at the credit of the account. 7. The annual dividends thence arising, which amount to about £137, have been regularly paid in terms of the settlement aforesaid to the trustees of the hospital, and have been applied by them to the uses of the hospital. Until recently no claim either to the capital sum of said bequest or to the interest and dividends thence arising has been advanced by any party. 8. In December 1900 the Kirk-Session of the Parish Church of Elgin (the third parties to this case) convened a meeting of the congregation, which was held on 17th December 1900 in the Parish Church hall. At that meeting a resolution was unanimously passed that a new church in connection with the Church of Scotland was urgently required in the town, and that its erection should accordingly be proceeded with. A large committee was appointed at the said meeting to carry out the project. 9. At a meeting of the Kirk-Session of the Parish Church (the third parties to this case), held on 22nd January 1901, a resolution in these terms was passed—‘That as the congregation, at a meeting on 17th December last, were unanimously of opinion that additional church accommodation is required for the parish, the Kirk-Session resolve to communicate with the trustees of the late Dr Alexander Gray, to ascertain whether they will now proceed to apply the sum bequeathed for the purpose of providing a new church for the town in terms of the deed of settlement.’ Communication was duly made in terms of the said resolution with the first parties.’ 10. The Parish Church of Elgin is now, and has since the year 1607, been a collegiate charge with two ministers, and the ministers and Kirk-Session (the parties of the third part) have now called upon the parties of the first part to take the necessary steps to uplift the said church legacy from Chancery, and to apply the same towards providing a second church in the town of Elgin in connection with the Church of Scotland.” The parties further stated that when the testator left Elgin for India in 1780 there were two churches in Elgin in connection with the Church of Scotland—(1) The Parish Church of St Giles, known as the “Muckle Kirk,” which was a collegiate church served by two ministers. The “Muckle Kirk” was pulled down in 1826, and a new church was built on its site, which was still used as the parish church, and was in good order and repair. (2) The Little, Laigh or East Kirk. This formed part of the old parish church, but had a separate minister and congregation. In 1713 the House of Lords found that it belonged to the Magistrates of Elgin, “it being no part of the parish church.” As the Magistrates refused to repair it, it fell into decay, and was demolished about the year 1800.

The questions of law were as follows:—“1. Is the legacy or bequest in question void from uncertainty, and if so, are the parties of the first and second parts, or either of them, entitled to apply the capital as well as the income of the same to the uses of the said hospital? 2. In the event

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of question 1 being answered in the negative, is the said legacy or bequest, on a sound construction of said will and testament, intended by the testator to be applied, if and when the application of the moneys for that purpose should be required—( a) to the building of a new parish church in place of the then existing Church of St Giles; ( b) to the building of a church in the town of Elgin in place of the before-mentioned Little Kirk; or ( c) to providing an additional church for the town of Elgin in connection with the Church of Scotland? 3. On a sound construction of said will and testament, is it a condition of the said legacy or bequest that the church contemplated by the testator should be ‘required’ in the sense of being needed to meet the spiritual necessities of the town or parish of Elgin?”

A minute was put in for the Lord Provost, Magistrates, and Councillors of the Royal Burgh of Elgin and for the Heritors of the parish of Elgin, in which they craved the Court to dismiss the case. The minuters, the Lord Provost, Magistrates, and Councillors, stated that they were apprehensive lest they should be prejudiced, by the decision of the questions put in this case, in the proceedings which would hereafter have to be taken in the Chancery Division of the High Court of Justice in England for the purpose of determining who is entitled to the said fund. They also objected that their rights in the bequest arising from their relation to the said Little or Laigh Kirk were ignored. They further referred to the powers expressly conferred upon them by the will of the testator, and also averred and maintained as follows:—“For nearly a century they have exercised the rights of investigation, criticism, and supervision which the will confers upon them. They respectfully submit that the presentation of the special case, adjusted with persons who have no interest, or at all events have not the sole interest, and without these minuters' knowledge, and without their even having an opportunity of remonstrance, was contrary to the terms of the will as well as to the practice of parties in the past.”

The other minuters, the Heritors, pointed out that the fund in question was bequeathed for building the said “new town church.” They maintained “that the testator did not contemplate the building of a chapel of case or church for a new quoad sacra parish, but the rebuilding of the town church—a matter not within the competency of any of the parties to the special case. These minuters being the persons liable in the cost of building the town church, have the legal interest in all funds bequeathed for the purpose, or which might be used for the more comfortable and seemly erection of the church in question. They object to their rights being invaded by the Kirk-Session—a body which has no legal status in the matter.”

The minuters declined to become parties to the case.

The parties to the special case argued in answer to these contentions that as the minuters were not parties to the case their interests were not affected by it, the judgment in a special case not being res judicata against anyone who was not a party to it— Barrie's Trustees v. Black, February 23, 1899, 36 S.L.R. 475.