Scottish Court of Session Decisions

Alexander Milne, residing in Aberdeen, died on 8th March 1003 leaving a will dated 19th April 1898 and recorded in the Sheriff Court Books of the county of Aberdeen 30th March 1903, by which he nominated Arthur Odling, London, and John Duncan Nimmo, of Calcutta, as his executors, and after providing for payment of his debts, deathbed, and funeral expenses, together with various legacies, dealt with the residue of his estate as follows:—“And should any balance remain over from my estate after satisfying all the above claims, then I devote such balance of residue to the Bursary Fund of the Aberdeen University to help in the education of poor and struggling youths of merit.” The executors nominated accepted office, and after all payments of debts, legacies, &c., had been made from the testator's estate a residue of £9000 or thereby remained in their hands to be dealt with.

In the University of Aberdeen the various bursary endowments are not merged in one general bursary fund, but each individual endowment is kept separate, the revenue being devoted to the special purpose for which the bursary, was founded. These bursaries differ from one another in regard to their objects, value, conditions of tenure, &c. Certain powers of administration were conferred on the University Court of the said University by section 6 of the Universities (Scotland) Act 1889, which is in the following terms:—“The University Court, in addition to the powers conferred upon it by the Universities (Scotland) Act 1858 shall, subject to any ordinances made by the commissioners, have power—(1) to administer and manage the whole revenue and property of the University and the college or colleges thereof existing at the passing of this Act, including the share appropriated to such University out of the annual grant hereinafter mentioned, and also including funds mortified for bursaries and other purposes, and to appoint factors or collectors to grant leases, to draw rents, and generally to have all the powers necessary for the management and administration of the said revenue and property.”

Questions having arisen as to the application of the residue between the parties interested, this special case was presented. The parties to the special case were—(1) the testator's executors; (2) the University Court of Aberdeen University; (3) the heirs in mobilibus of the testator. The first parties maintained that the bequest was a valid one; that they were bound to administer it under a scheme to be approved by the Court; and that the second parties were not entitled to receive and discharge the bequest. The second party maintained that they were entitled to receive the bequest to be administered so as best to give effect to the testator's wishes. The third parties maintained that the bequest of residue was null and void on the ground of uncertainty, and in respect that it referred to a bursary fund which did not exist. They accordingly claimed that the residue became intestate succession and fell to them as heirs in mobilibus of the testator.

The following questions were submitted for the opinion and judgment of the Court:—“1. Is the bequest of such balance of residue to the Bursary Fund of the Aberdeen University valid? 2. (1) Are the second parties entitled to receive and discharge the same? or (2) Does it fall to be administered by the first parties under a scheme to be approved by the Court? or 3. Is said bequest invalid through vagueness and uncertainty, and does the balance fall to be paid to the testator's heirs in mobilibus?”

Argued for the first party—The testator's intention to help poor youths of merit in their education by means of bursaries was clear, but the use of the word “devote” made strongly against the view that a bequest to the University was intended, and the University Court could not grant a valid discharge. The first parties having as executors—nominate all the powers of trustees were in a position to administer the trust in accordance with the testator's intention.

Argued for the second parties—The testators intention was clear; he had made no provision for a continuing trust, but had satisfied every requisite of law to constitute a valid bequest of residue in their favour. The fund fell to be administered by the University Court along with the other bursary funds of the University— Crichton v. Grierson, July 25, 1828, 3 W. & S. 329, per the Lord Chancellor at p. 338. The clearness of expression of the testator's intention distinguished the present case from those of Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, sub nom. Young's Trustees v. Young's Trustee, 39 S.L.R. 212, and Macintyre and Others v. Grimond's Trustees, March 6, 1905, 42 S.L.R. 466. This bequest was for charitable

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purposes, and so entitled to special favour. If necessary a scheme could be submitted for the approval of the Court to carry out the testator's intention— Magistrates of Dundee v. Morris, March 25, 1885, 3 Macph. App. Cas. 134.

Argued for the third parties—Neither the subject nor the object of the bequest was sufficiently definite. It referred to a non-existent bursary fund. The bequest might have been good had it been for charitable purposes, but its purpose did not fall within that category— Baird's Trustees v. Lord Advocate, June 1, 1858, 15 R. 682, opinion of Lord Shand, 25 S.L.R. 533; Commissioners of Income Tax v. Pemsel, July 20, 1891, L.R. (H.L.) App. Cas. 531. The bequest was bad owing to its uncertainty, as the testator had given no definite directions how the money was to be applied in carrying out his wishes— Grant and Others (Low's Executors) v. Macdonald and Others, June 21, 1873, 11 Macph. 744, 10 S.L.R. 505. The Court would not interpose machinery to make a bad bequest such as this was good— Davidson ( Bobbie's Factor) v. Macrae and Others, February 4, 1893, 20 R. 358, 30 S.L.R. 411. The residue accordingly fell into intestacy