Scottish Court of Session Decisions

By her trust-disposition and deed of settlement dated 28th June 1872, Mrs Christian Abercrombie or Chivas directed her trusree to lay out and invest on good security, in his own name as trustee, and that at the first term of Whitsunday or Martinmas happening six months after her death, inter alia, “( Fifth) the sum of £2000 sterling, the interest or revenue whereof shall be divided and paid half-yearly and termly, equally between the Right Reverend Bishop Thomas Suther of Saint Andrew's Church, Aberdeen, and the Reverend Macleod, of the Episcopal Church at Ellon, during all the days of their lives, and on the death of the predeceaser, the whole interest or revenue shall be paid wholly to the survivor during all the days of his life, and on the death of the last survivor, the said principal sum of £2000 shall be paid to the Episcopal Fund in connection with the Saint Andrew's Church, Aberdeen, the said last-mentioned bequest being made by me in name of and as a memorial of my husband, who was much attached to his church.” By codicil dated 30th October 1872 the testatrix revoked and recalled the foresaid bequest of £2000, so far as regards the destination of the same after the death of the liferenters, and did thereby “leave and bequeath the said sum of £2000 sterling, upon the death of the said liferenters, to the Scottish Episcopal Church Society in aid of increase of the stipends of the clergy.” By codicil dated 6th November 1872 the testatrix recalled the said legacy of £2000, bequeathed by her in liferent to Bishop Thomas Suther and Nicholas Kenneth Macleod of Ellon, and after their death the principal sum to the fund in connection with the Scottish Episcopal Church Society for the increase of the stipends of the clergy, and in lieu thereof she directed her executor “to invest the sum of £4000 on good security and pay the annual income derived therefrom equally between Bishop Suther and the said Mr Macleod during all the days of their life and wholly to the survivor, and after the death of the survivor of them, to hold the said fund and divide the annual income derived therefrom among the clergy of the Diocese of Aberdeen in supplement of their stipends.”

The testatrix died on November 14, 1878. Legacy-duty was paid on the legacy, leaving £3600 in the hands of the original and assumed trustees under the trust-disposition and settlement. The annual income thereof was paid to Bishop Suther and the Reverend Mr Macleod, and to Mr Macleod as the survivor of them, down to the dates of their respective deaths on January 23, 1883, and October 3, 1898.

Thereafter a question arose as to what persons were entitled to participate in the annual income of the fund, and a special case was presented for the opinion and judgment of the Court. The parties to the special case were (1) the trustees; (2) the Bishop of the United Diocese of Aberdeen and Orkney in the Episcopal Church in Scotland; (3) thirty-eight clergymen instituted to charges within that portion of the United Diocese of Aberdeen and Orkney at one time known as the Diocese of Aberdeen in connection with the Episcopal Church in Scotland; (4) three clergymen holding licences of the bishop and appointed to independent mission charges within said portion of said United Diocese; (5) two clergymen holding licences of the bishop and acting as curates or assistants to instituted clergymen within said portion of said United Diocese; (6) three clergymen formerly officiating within the Diocese of Aberdeen, and now retired and on the Aged and Infirm Clergy Fund of the Representative Church Council in connection with the Episcopal Church in Scotland, but still holding licences of the bishop; (7) the Bishop for and on behalf of a clergyman performing clerical duties when required

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on behalf of other clergymen of the diocese who might be temporarily unable to fulfil the same, and known as the supernumerary clergyman of the diocese (that office being temporarily vacant); (8) two clergymen instituted to charges within that portion of the United Diocese of Aberdeen and Orkney, at one time known as the Diocese of Orkney; and (9) two clergymen holding licences of the bishop appointed to mission charges within said portion of said United Diocese.

In the special case the following facts were stated:—“In 1864, prior to the date of the testatrix's trust-disposition and deed of settlement, the northern Diocese of Orkney was united with the Diocese of Aberdeen, and the two Sees have ever since been known and referred to as the United Diocese of Aberdeen and Orkney. Before the union the said Diocese of Aberdeen included the whole county of Aberdeen and a portion of the county of Banff. The said United Diocese is ruled by one bishop, and the affairs of the United Diocese are regulated and managed by one set of officials. The diocesan expenses of the United Diocese are annually ascertained by the Diocesan Council, and the whole congregations, including missions, within the United Diocese are assessed in respect thereof upon the same basis. The third and eighth parties are appointed to their incumbencies by the members of the congregation, unless the appointment happens to be within the patronage of one or more private individuals, and the fourth and ninth parties are similarly appointed. The fifth parties are generally appointed by the instituted clergymen whom they assist, and are paid by them or by their congregations as may be arranged. The said fifth, sixth, and seventh parties are, along with the second, third, fourth, eighth, and ninth parties, members of the Representative Church Council of the Episcopal Church in Scotland, which under the said Canons [ i.e., the Code of Canons of the Episcopal Church in Scotland] is recognised as the organ of the Church in matters of finance.”

In the appendix to the special case the following letter, dated 12th September 1874, by the testatrix to her law-agent, was printed:—“I wish the sum of £500 to be set apart for a memorial window to Mr Chivas in our church of St Andrew's as it now is, or in a church that may be built hereafter. I may not look to see this, but the sum on demand must be paid to Dr Suther, the Rt. Revd. Bishop of Aberdeen and Orkney. Should he also have passed away ere the work is completed, you will please pay the said sum for the above-ment'd purpose to the Rt. Revd. the Bishop of Aberdeen in the Scottish Episcopal Church for the time being.”

The second party maintained that he was entitled to share in the income with such of the clergy as might be found entitled to participate.

The third parties maintained that the annual income of the said bequest fell to be divided among the second and third parties only.

The fourth parties maintained that the said income fell to be divided between the bishop and such of the clergy of the Diocese of Aberdeen as were licensed to the charge of independent congregations—that is to say, between the second, third, and fourth parties only.

The fifth, sixth, and seventh parties maintained that they were entitled to participate in the income of said fund, in respect that they held the licence of the bishop of the diocese, and had the full status of clergy therein.

The eighth and ninth parties maintained that the clergy of the district which formed the original Diocese of Orkney were entitled to take equally, share and share alike, along with the clergy of the district which formed the original Diocese of Aberdeen, the benefit conferred by the said trust-disposition and settlement upon “the clergy of the Diocese of Aberdeen,” the two dioceses having been united prior to the death of the truster. Upon the question whether the term “clergy” included those appointed to the charge of independent missions, those acting as assistants to instituted clergy, retired clergy still holding the bishop's licence, and the supernumerary clergyman of the diocese, as well as those instituted to incumbencies, the eighth and ninth parties adopted the contentions of the third and fourth parties respectively.

The question of law was—“Are the second, third, fourth, fifth, sixth, seventh, eighth, and ninth parties, or any and which of them, entitled under said bequest to participate in the annual income to be derived from the said trust fund?”