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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron's Trustees v. Mackenzie and Others [1915] ScotLR 307 (15 January 1915) URL: http://www.bailii.org/scot/cases/ScotCS/1915/52SLR0307.html Cite as: [1915] SLR 307, [1915] ScotLR 307 |
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Page: 307↓
Succession — Charitable Bequests — Trust — “Such Charitable Institutions, Persons, or Objects as my Trustees may Think Desirable” — Uncertainty.
On a lady's death there were found in her repositories two deposit-receipts for £450 and £300 respectively. The deposit-receipts were taken in name of the deceased and were endorsed by her. Attached by a pin to the deposit-receipt for £450 was a slip of paper bearing the words “£150 to Mrs A., £150 to Mrs B., £150 to Mrs C.— Mary Cameron” (deceased's signature). Attached by a pin to the deposit-receipt for £300 was a slip of paper bearing the words “John Cameron for annuity— Mary Cameron.” These writings were holograph of the deceased. Held that the holograph writings did not show testamentary intention, and were not valid testamentary bequests of the sums in the deposit-receipts.
A testatrix bequeathed the residue of her estate to her trustees “with power to them to distribute the same amongst such charitable institutions, persons, or objects as they may think desirable.” Held ( dub. Lord Skerrington) that the bequest was not void from uncertainty.
On 17th March 1914 a Special Case was presented to the Court by George Duncan Collie and another, the testamentary trustees of the late Miss Mary Cameron ( first parties), Mrs Elizabeth Rachel Mackenzie, who was mentioned in certain writings of the testatrix ( second party), John Cameron, a brother of the testatrix mentioned in certain writings ( third party), and Miss Annie Elizabeth Cameron, a niece who with the said brother was the next-of-kin of the testatrix ( fourth party).
The Special Case stated, inter alia—“1. Miss Mary Cameron, who resided in Crown Street, Aberdeen, died upon the 2nd of August 1913, leaving a trust-disposition and settlement dated 14th September 1904 and a relative codicil dated 12th June 1911.
2. By her said trust-disposition and settlement Miss Cameron, on the narrative therein stated, and in implement of certain conditions set forth in the said narrative, disponed and conveyed her estate, both heritable and moveable, to the first parties as her trustees in trust for the following purposes, viz.—(1) for payment of debts; (2) to allow her brother John Cameron the liferent use of her whole heritable and moveable means and estate; (3) on the death of the said John Cameron or her own, should he predecease, she directed her
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trustees to realise her said means and estate and to make payment of certain legacies free of all Government duty; (4) ‘With reference to the residue of my moveable means and estate, I leave the same to my trustees, with power to them to distribute the same amongst such charitable institutions, persons, or objects as they may think desirable, the time of distribution and the amount to be given to be entirely in the discretion of my said trustees'; and she declared the provisions therein conceived in favour of her said brother John to be irrevocable because of their contractual nature, and she revoked all former deeds of settlement made by her. By a later clause the testatrix reserved her own liferent, with full power at any time during her lifetime to alter or revoke the said settlement in so far as the disposal of the fee of her estate as therein above mentioned was concerned. 3. By her said codicil dated 12th June 1911 the testatrix made certain specific bequests of articles of furniture and personal belongings.
4. There was found in the testatrix's repositories (enclosed in her desk, which was in a press in her bedroom) after her death, inter alia, two deposit-receipts issued by the National Bank of Scotland, Limited, Aberdeen, for £450 and £300 respectively, and both dated 19th May 1913. The said deposit-receipts are taken in the name of the testatrix, and both are endorsed by her. Attached by a pin to the deposit-receipt for £450 when it was found in the said repositories was a slip of paper bearing the following words in deceased's handwriting, viz.:—
‘£150 to Mrs Mackenzie, Dunkeld.
£150 to Mrs H. Croll, Stocket.
£150 to Mrs Thomson, Ancrum.
Mary Cameron.
The words ‘Mary Cameron’ were the usual signature of the testatrix. Attached by a pin to the deposit-receipt for £300 was a slip of paper bearing the following words in deceased's handwriting, viz.:—
‘John Cameron
for annuity. Mary Cameron.’
The words ‘Mary Cameron’ were the usual signature of the testatrix.…
5. The amount of the estate left by the testatrix is about £2600, of which about £200 is heritable and about £2400 moveable.
6. Questions have now arisen (first) as to what writings constitute the testamentary dispositions of the testatrix; (second) as to the validity and effectiveness of the said fourth purpose of the said trust disposition and settlement.…
7. The second party is one of the three persons named in the said writing attached to the said deposit-receipt for £450, opposite whose names sums of money were written. The third party is the brother of the testatrix referred to in said trust-disposition and settlement, and is the person named in the writing attached to the deposit-receipt for £300. The fourth party is the daughter of a deceased brother of the testatrix. The third and fourth parties are her whole heirs in mobilibus.
8. The first parties maintain that the fourth purpose in the said trust-disposition and settlement, namely, that disposing of residue, is valid and effectual.
9. The second party maintains that the said writing attached to said deposit-receipt for £450 forms part of the testamentary disposition of Miss Cameron, and constitutes a valid bequest of the sum contained in said deposit-receipt to her to the extent of £150.…
10. The third party maintains that the said writing attached to the said deposit-receipt for £300 forms part of the testamentary dispositions of Miss Cameron, and constitutes a valid bequest of the sum contained in the said receipt in his favour, either absolutely or conditionally on said sum being applied by him in the purchase of an annuity, or alternatively that it constitutes a valid direction to the first parties to purchase with the said sum of £300 an annuity for the third party.… He also maintains that the residue clause is void from uncertainty, and that the residue falls to the heirs in mobilibus of the testatrix.
11. The fourth party maintains that the said writings attached to the said deposit-receipts do not constitute valid testamentary bequests of the sums contained in the said deposit-receipts, and that the said sums fall into and form part of the general residue. She also maintains that the fourth purpose of the said trust-disposition and settlement, namely that disposing of revenue, is void from uncertainty, and that the residue accordingly falls to be paid to herself and the third party in equal parts as heirs in mobilibus of the testatrix.”
The questions of law were—“1. Does the holograph writing attached to the said deposit-receipt for £450 constitute a valid testamentary bequest of that sum to the second party to the extent of £150? 3. Does the holograph writing attached to the said deposit-receipt for £300 constitute a valid bequest of the sum contained therein in favour of the third party—( a) absolutely, or ( b) under the condition that he shall expend the amount of said bequest in the purchase of an annuity for himself, or ( c) under the condition that the first parties shall purchase said annuity for his behoof? 4. Does the fourth purpose of the said trust-disposition and settlement validly and effectually dispose of the residue of the trust estate? or is the said fourth purpose void from uncertainty?”
The third party argued—The holograph writing attached to the deposit-receipt for £300 was a valid testamentary bequest of the sum in the receipt. No special words of gift were necessary, nor need the words used form a complete sentence— Colvin v. Hutchison, May 20, 1885, 12 R. 947, per Lord President (Inglis) at p. 955, 22 S.L.R. 632, at p. 635. Testamentary intention was shown here by the words used, and by the circumstances in which the writing was found— Mitchell's Trustees v. Pride, 1912 S.C. 600, 49 S.L.R. 452. The deposit-receipt and the writing were attached, and found where testamentary writings would be kept. He was entitled to the fee— Lawson's Trustees v. Lawson,
Page: 309↓
July 17, 1890, 17 R. 1167, 27 S.L.R. 899. The fourth purpose of the settlement was void from uncertainty. If “charitable” qualified “institutions” only and not “persons” and “objects,” then testamentary power was delegated to the trustees and the bequest was void. If “charitable” qualified all three words, “charitable persons” as the object of a bequest was unintelligible and the bequest was void— M'Conochie's Trustees v. M'Conochie and Others, 1909 SC 1046, 46 S.L.R. 707. The second party argued—The holograph writing attached to the deposit-receipt for £450 was testamentary, and contained valid bequests of the sums mentioned. A verb of bequest was not needed— Colvin v. Hutchison ( cit.). This writing contained the word “to,” and was more clearly testamentary than the other. The receipt was later in date than the will, it was endorsed, the docquet was fastened to it, and the papers were found where testamentary writings would be. These circumstaces sufficiently disclosed testamentary intention. The intention was not necessarily gift inter vivos— Mitchell's Trustees v. Pride ( cit.).
The first parties argued—The residue clause was not void from uncertainty. The testatrix intended to give her trustees a discretion to distribute among certain purposes, all charitable. “Charitable persons” meant persons in need of charity. A benignant construction of the clause must be taken— Macduff v. Spence's Trustees, 1909 S. C. 178, per Lord M'Laren at p. 184, 46 S.L.R. 135, at p. 139. By so doing a reasonable result could be arrived at, and the clause was therefore valid— Weir and Others v. Murdoch's Trustees, 1908 SC (HL) 3, 45 S.L.R. 335.
The fourth party argued—The writings attached to the deposit-receipts were not testamentary. Testamentary intention must be clearly shown. In this case the intention to benefit the parties named was clear, but the circumstances pointed to an unfulfilled intention of gift inter vivos and not to bequest a morte. The endorsement of the receipts pointed to gift inter vivos, for which it would be essential. Endorsement was not necessary in donation a morte. The docquets were mere lists of figures and names—in one case with the word “to,” in the other with a purpose. Such informal writings as the docquets had never been sustained as testamentary unless there was reference in the will to informal writings— Lowson v. Ford and Others, March 20, 1866, 4 Macph. 631, 1 S.L.R. 227; Colvin v. Hutchison ( cit.), per Lord President on pages cited; Waddell's Trustees v. Waddell and Others, December 2, 1896, 24 R. 189, 34 S.L.R 142; M'Laren on Wills and Succession, p. 350. There was no such reference here. The residue clause was void from uncertainty, on which point the argument of the third party was adopted.
It is, no doubt, true that it is unnecessary to find in the words of a gift a verb indicating the intention to transfer or bequeath or convey, and it is equally true that the words do not need to form part of a proposition or a completed sentence. I adopt without qualification the words of the Lord President in the case of Colvin v. Hutchison, 12 R. 947, 22 S.L.R. 632, when he says—“I do not think it matters how inelegant or how imperfect grammatically a testator's language may be, if it can fairly be construed to mean that he bequeaths certain sums of money to certain individuals, sufficiently designed in the writing itself.” But we must find in the writing itself words indicative of an intention to bequeath. In the case before us the only word which is pointed to as indicative of a testamentary intention is the preposition “to” prefacing the names on the slip of paper. I am of opinion that the word “to” prefacing these names is not sufficient to indicate testamentary intention. It may indicate an intention to give inter vivos or to bequeath. And it is just as easy, I think, to infer from a schedule of names, with sums set opposite each name, testamentary intention as to infer testamentary intention from a similar schedule with the preposition “to” prefacing the names. There must be, I think, something
Page: 310↓
Now I have no doubt myself that if either of these two learned Judges had thought that the addition of the preposition “to” to the names of the persons on the list had been sufficient to indicate testamentary intention they would have said so, but if they had said so then their opinions would have been contrary, as I think, to the decision of the Second Division in the case of Lowson v. Ford, for I remind your Lordships that in that case two of the writings which were held to be not testamentary did contain words added to the mere list of names with figures. In one instance the words were—“Margaret to get my clothes, a bed and … bedding”; and in the other instance—“The Walkers 100 to be divided amongst them.” The addition of these words to the list of names and figures was held to be insufficient to indicate testamentary intention.
The conclusion which I reach, therefore, is that while we may conjecture, we are unable to affirm that these writings are testamentary.
The next question we have to consider is whether the residuary clause in the trust-disposition and settlement is void on the ground of uncertainty. It runs as follows—“With reference to the residue of my moveable means and estate, I leave the same to my trustees, with power to them to distribute the same amongst such charitable institutions, persons, or objects as they may think desirable.”
I am of opinion that this residuary clause is not void from uncertainty. As I read the clause, the grammatical construction requires me to qualify the three words “institutions, persons, and objects” with the adverb and adjective “such charitable.” And it is certain that if “such charitable institutions” had stood alone, or if “such charitable objects” had stood alone, or if both expressions had been used, either copulated by “and” or disjoined by “or,” the bequest would have been valid. It is urged, however, that the interposition of the word “persons” renders the clause void on the ground of uncertainty. I cannot think so. Of course, according to the ordinary, usual, and natural meaning of the English language “charitable persons” indicates persons who are given to dispensing charity, and not persons in need of charity; but I have no doubt whatever that the testatrix intended, in the connection in which we find it, the adjective “charitable” to be interpreted as meaning, when prefacing the noun “persons” in need of charity.
I cannot conjecture any other meaning which the testatrix could have had. I see no other or alternative interpretation; and it is not without importance to observe that the adjective “charitable” as qualifying “objects” must be read in the same sense—“charitable objects” means objects in need of charity. The introduction of the word “persons” indeed appears to me to be superfluous. The object would have been sufficiently well achieved if it had been omitted altogether. But I have no doubt whatever—I do not feel that I am here in the region of conjecture—I have no doubt whatever that the testatrix meant by “charitable persons” persons in need of charity; and therefore, giving it that inter-conferred by Miss Cameron's generalcretation—which I concede is unusual, probably unprecedented—the residuary clause is effectual.
If these views are sound, then we ought to answer the first question in the negative; the second question is superseded; the third question will be answered in the negative; the first alternative of the fourth in the affirmative, and the second alternative in the negative.
I think this question is a narrow one, for the natural inference is that Miss Cameron intended the second party and the two other ladies mentioned in the jottings, each to have £150 out of the deposit-receipt, and that would have exhausted its contents. But did she intend a mortis causa disposal of the sum contained in the deposit-receipt, or an inter vivos gift? For if the latter, it was uncompleted for want of delivery. The fact that the date of the
Page: 311↓
While therefore I do so with some hesitation, I concur with your Lordship that there is not enough to indicate a testamentary and not an inter vivos intention. Regarded with strict technicality, the fact that the deposit-receipt was indorsed supports the view of inter vivos intention, because indorsation was an appropriate step in inter vivos donation and not in testamentary bequest. But I do not like to rest upon this consideration in determining what is really a question of intention, because it is hardly to be supposed that the testator was aware of the technicality to which I advert. I base my judgment entirely upon this, that the testator has failed to indicate with sufficient clearness a testamentary intention.
If the jotting attached to the deposit-receipt for £450 was not a good testamentary document, the case of that attached to the deposit receipt for £300, in which the testatrix's brother is the party interested, is weaker, and the same conclusion must be reached.
There remains the question whether the power conferred upon the trustees to dispose of residue is void from uncertainty. The question is one of impression, but personally I do not have any difficulty. The trustees are empowered to distribute the residue after the expiry of Miss Cameron's brother's liferent “amongst such charitable institutions, persons, or objects as they may think desirable, the time of distribution and the amount to be given to be entirely” in their discretion. I have no doubt that this is a power to distribute in charity to such institutions, to such persons, or to such objects as the trustees might select. I agree that the adjective “charitable” when applied to persons is not in its ordinary and natural meaning indicative of individuals who are suitable recipients of charity, and had “persons” alone been mentioned, and institutions and objects omitted, I could not have given to the words “to such charitable persons” this or, indeed, any other intelligible meaning. But I must read the words in the collocation in which they stand, and I must ask myself what was the intention of the testator, and I cannot for a moment conceive that she intended to empower her trustees to distribute her residue among such charitable institutions or among such persons or among such objects, the two latter without qualification, as they might select. Had she done so, I quite admit that the bequest would have been void. But regarding the terms of the power, as I feel sure that Miss
Cameron's trustees as reasonably intelligent men would do, I cannot have any doubt that they would understand the words used to give them power to distribute her residue in charity, but at the same time to import that she thought that she was making her authority comprehensive as well as specific by enumerating the directions in which charity flows, viz., institutions, individuals, and objects. By so doing she has, like many another testator, given an opportunity for questions as to the effect of her words. But I think that it is a question which can be resolved easily and only in one way, viz., as your Lordship proposes.
Upon the question of the testamentary or non-testamentary character of these two holograph writings I may refer by way of contrast to a case which is in many respects similar to the present one, but which was not quoted at the debate. I refer to the case of Panton v. Gillies, (1824) 2 S. 632. The writing in that case was a holograph writing signed by the testator, and it began as follows:—“The bill within this paper you will give Miss Panton, £100,” and then follow various names of persons with sums of money which amounted exactly to the sum of £208, which was the amount of the deposit-receipt which was pinned to the holograph writing. The Court held that there was there a good bequest of the contents of
Page: 312↓
With regard to the fourth question, I am bound to say that I feel a very great difficulty. I have great difficulty in attributing to the testatrix the use of an expression which seems to me to be not merely unprecedented but nonsensical in its collocation, namely, “charitable persons.” As, however, your Lordships feel no difficulty as to what the lady really meant, I do not feel it necessary to dissent.
The Court answered the first and third questions of law in the negative, and the first alternative of the fourth question in the affirmative.
Counsel for the First and Second Parties— A. M. Mackay. Agents— R. C. Gray & Paton, S.S.C.
Counsel for the Third Party— Mitchell. Agents— Douglas & Miller, W.S.
Counsel for the Fourth Party— Carmont. Agents— W. & T. P. Manuel, W.S.
