Scottish Court of Session Decisions

On 13th February 1908 R. B. Paterson, Bothwell Street, Glasgow, and another, trustees of the late Charles Mackinnon, 21 Roselea Drive, Glasgow, brought an action of multiplepoinding and exoneration against Hector Mackinnon (address and designation unknown), and others, the testator's next-of-kin, who maintained that the testator had failed to dispose effectually of the residue of his estate.

The bequest of residue is given supra in rubric.

Claims were lodged by (1) the trustees, who maintained that the bequest was valid; and (2) by the next-of-kin, who contended that it was void from vagueness and uncertainty, and that the residue accordingly fell to be distributed as intestate succession of the deceased.

On 29th October 1908 the Lord Ordinary ( Johnston) repelled the claim for the trustees and sustained that of the next—of-kin.

Opinion.—“Charles Mackinnon, the testator, left the residue of his estate to be paid ‘to such charitable or philanthropic institutions, one or more, in Glasgow or the West of Scotland, as my trustees may select.’ The question raised in this multiplepoinding is, whether ‘charitable or philan—throphic’ is a sufficiently definite description of a class of institutions to admit of the bequest being sustained, or whether it is void from uncertainty. In the most recent case on this subject— Hay's Trustees v. Baillie, 45 S.L.R. 908—in reversing my judgment Lord Kinnear says—‘A testator 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;’ and his Lordship adds that it is ‘a question of degree whether the circumscribing line by which he defines the class is sufficiently distinct or not.’ This states more concisely than I am afraid I succeeded in doing, the view on which I had proceeded. I think, further, that it has been generally accepted that the term ‘charitable’ is in itself not sufficiently definitive of a class to satisfy the above requirement, but that in the case of Crichton, 1828, 3 W. & S. 329, favour for charity induced the Court to determine that it should be conventionally accepted as sufficiently definitive, and that it has accordingly been so accepted ever since. There is therefore now no question that a bequest to ‘charitable’ purposes must be sustained. And the question therefore which I have to determine in this case is, Whether a bequest to ‘charitable or philan—thropic’ purposes is also to be accepted as

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sufficiently definitive? This I assume it will be if ‘charitable or philanthropic’ be nothing else than ‘charitable’ writ in two words instead of in one, or if ‘philanthropic’ be in itself sufficiently definite so as not to detract from the conventional definiteness of ‘charitable.’ I quite accept that this is a question of the testator's intention, to be deduced from the particular words he has used.

I have read with attention the decision of the Inner House in Hay's Trustees v. Baillie, supra. I am glad to say that I not only bow to it as a superior authority, but that it has fully satisfied me that my judgment in the case was erroneous. I had not sufficiently adverted to the fact that in using the definition ‘benevolent or charitable’ the testatrix had placed the wider word ‘benevolent’ first, and that in the circumstances the subsequent narrower word ‘charitable’ must on a fair construction be treated as exegetical of the previous wider term ‘benevolent,’ with the result that the combined expression is merely a pleonasm for ‘charitable.’ But I remain of the opinion, which I ventured to express, that it does not follow from the decision in Crichton's case, and the practice which has ensued, ‘that the favour for charity which has induced the Court to accept “charitable” as definitive of a sufficiently particular class of objects, will further induce the Court to give to “charitable” a loose and vague meaning so as to cover anything which may be classed as benevolent,’ and accordingly were ‘charitable or benevolent’ found occurring in that order I should till further instructed repeat my judgment, and if so, I must pari ratione treat ‘charitable or philanthropic’ in the same way.

I have here to construe that expression ‘charitable or philanthropic.’ There is nothing in the settlement to assist in the interpretation. For it is an ordinary family settlement containing this one discretionary direction as to residue. I cannot read the word ‘philanthropic’ as synonymous with charitable. It is one of wider and more indefinite meaning. Nor can I discard it. The testator has used it, and I cannot reject it. His intention must guide to a conclusion. But I must find his intention from his words. If I am to do so I have to choose between holding—(1) ‘charitable’ and ‘philanthropic’ as synonymous, and the testator's use of both expressions therefore as merely pleonastic. This, as I have already said, I am unable to do; or holding (2) ‘philanthropic’ as either an alternative for or exegetical of ‘charitable,’ but in itself sufficiently definite to sustain the bequest; or holding (3) the term ‘philanthropic’ as alternative for or exegetical of ‘charitable,’ but in itself too indefinite to support a discretionary bequest.

As between alternative and exegetical I think I should most nearly reach the testator's meaning by accepting that ‘philanthropic’ was exegetical of charitable. But if so, it conveys the governing idea, and the testator might have expressed, and indeed must be held to have expressed, nothing but ‘philanthropic,’ and had philanthropic occurred alone as a description of the objects of the testator's bounty, I could not have held it otherwise than so indefinite as to void the bequest.

The result of treating the expressions as alternative would be to reach the same result in a different way.

I was much pressed in argument by the contention, founded, I think, upon expressions used by the present Lord Chancellor in the case of Murdoch's Trustees, 1908 SC (HL) 3, 45 S.L.R. 335, that it must be prefaced, in the consideration of all such cases as the present, that a benignant construction is to be put upon charitable bequests, and that in so doing all that the Court needs to be satisfied of is that the description of the class of objects to be selected is sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator.

It is always very difficult, and not always productive of good result, to attempt to apply general expressions used in a case in which they were apposite, to the different circumstances of another case. And to try and make a general rule of the above expression creates in my mind more difficulty in the application than it relieves. I have first to ask myself, Is this a charitable bequest? Give it, say the trustees, a benignant construction and there is no doubt that it is. This appears to me to beg the question. You must first, I think, determine that the bequest is a charitable bequest, before you apply a benignant construction to it. I do not think that I am entitled to say that the testator clearly meant nothing more than ‘charitable,’ and that unless I reduce the exegetical or alternative ‘philanthropic’ to a mere synonym of ‘charitable,’ I will not be giving to his bequest a benignant construction, but will be straining his words in order to avoid doing so. It may be a matter of impression. But it appears to me that I strain the testator's words more by reducing the wider term ‘philanthropic,’ following the narrower term ‘charitable,’ to merely a synonym of ‘charitable,’ than by giving to the words he uses their natural meaning. As I think I must be satisfied that the bequest is a purely charitable bequest and nothing more, before I can give it a benignant construction, on the best consideration I can give to the case I am led to the conclusion that it is not purely a charitable bequest. And though I have no doubt that in attempting to execute the trust, the trustees, if men of common sense, may be relied on to apply the fund to purposes properly charitable and to discard purposes philanthropic but not charitable, I am unable to say that that is the expressed wish of the truster.

There is, I think, more assistance to be got from what I regard not as a general expression but a definite principle in regard to such cases, repeatedly enunciated since but thus stated by Sir William Grant, M.R., so far back as 1804, in the case of Morice v. Bishop of Durham, (1804) 9 Ves. 399—‘The question is, not whether

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the trustee may not apply it (the bequest) upon purposes strictly charitable, but whether he is bound so to apply it.’ In the present case I must answer the latter part of that question in the negative, and am therefore obliged to hold that the whole bequest is void from uncertainty.

In this judgment I trust I have not been unduly influenced by English authority. I certainly have read English cases, but I have not accepted them as guides without a careful scrutiny. I am perfectly aware that there is a distinction between the accepted meaning of the word ‘charitable’ in England and in Scotland. But the difference is this, that the word ‘charitable’ in England covers not only all that it covers in Scotland, but covers a great deal more. It is a case of the greater including the less. Were a Scottish case to involve the determination of the limits of the word ‘charitable,’ I quite assent to this, that no assistance could be got from the English cases, because in the definition of ‘charitable’ English views and ours would be different. In England it receives a general plus a technical meaning. In Scotland only a general. But if the question, as here, has nothing to do with the limits of charitable, but has to do with the comparison between the term ‘charitable’ and some other expression alternative or exegetical, such as ‘benevolent’ or ‘philanthropic,’ I cannot see why a judgment in England should not be a good guide, though it be not an authority in Scotland, because if charitable is not synonymous with ‘benevolent’ or other term of that description in England, then a fortiori it ought not to be so here. I may be wrong in my view of ‘philanthropic.’ Others may consider that the term ‘philanthropic’ is just another expression for charitable. I can only say that that is not my view. I hold it to be a word of much wider and more indefinite meaning. It has not yet been accepted by the Court here, as ‘charitable’ has been, as conventionally definite. I do not consider myself justified for the first time in putting upon it such a construction. And I shall therefore sustain the claim for the next-of—kin in the present case.

The expenses of the competition will come out of the fund in medio.”

The trustees reclaimed, and argued—The bequest was valid. The question really was, Were there two categories here or one? “Philanthropic” as used by this testator was exegetical of “charitable,” and that being so the bequest was clearly good— Hay's Trustees v. Baillie, 1908 S.C. 1221, 45 S.L.R. 908; Paterson's Trustees v. Paterson, 1909 S.C. 485, 46 S.L.R. 406: Weir v. Crum Brown, 1908 SC (HL) 3, 45 S.L.R. 335.

Argued for the next-of-kin—The Lord Ordinary was right. “Philanthropic” was not a synonym for “charitable.” There were many philanthropic institutions which were not charitable. There were really two alternative categories here, and the bequest was therefore void— Macduff v. Macduff, [1896] 2 Ch 451.