Scottish Court of Session Decisions

Upon the first question, apart from any authorities, I am of opinion that the testator intended that the institutions should be not only charitable but should also be benevolent. I do not see sufficient reason for reading the conjunction “and” as equivalent to “or.”

Upon the second question the authorities from Hill v. Burns ( 1826, 2 W. & S. 80) to Turnbull's Trustees ( 1918 SC (HL) 88, 55 S.L.R. 208) are conclusive.

The query ought to be answered in the negative.

Lord Skerrington—I am of opinion that the residuary bequest is valid, though none of the three arguments adduced in favour of its validity appears to me to be satisfactory. In the first place it was argued on the authority of the case of Weir v. Crum Brown ( 1908 SC (HL) 3, 45 S.L.R. 335) that the legacy being charitable was entitled to a benignant construction. This argument involves a petitio principii, and overlooks the fact that in the case cited the testator had stamped his bequest as charitable, seeing that the beneficiaries were to be indigent. In the second place, it was argued that according to Scots law the word “benevolent,” without any context to control it, and when applied to institutions or objects, has the same meaning as “charitable,” or (what comes to much the same thing) that the word “benevolent,” like the word “charitable,” designates when so applied a definite and particular class of institutions or objects from which a testator may, if he so pleases, validly direct his trustees to select such institutions or objects as they may consider to be deserving of his bounty. There are expressions of judicial opinion which imply the affirmative of this proposition, notably the dictum of Lord Brougham in Miller v. Black's Trustees, 1837, 35 Macph. 866, at p. 891. In other cases, such as Cobb v. Cobb's Trustees ( 1894, 21 R. 638, 31 S.L.R. 506), the identity in meaning and effect of the two adjectives was admitted by the parties and was assumed by the bench. In the absence of any decision to the contrary I am free to construe the word “benevolent” in what seems to me to be its natural and primary sense, viz., as descriptive of institutions or objects which, according to Scots law, may be, but are not necessarily and always, charitable. Even when the benevolence has for its objects the sick and the poor connected with a particular body, the latter may not be a charitable institution in the legal sense but a friendly society— Smith v. Lord Advocate, 1899, 1 F. 741, 36 S.L.R. 547. Benevolence, however, is much wider in its objects than charity as that word has hitherto been construed and defined by decisions in this country. To increase the virtue and happiness of persons who are already virtuous and happy is essentially benevolent, but is not necessarily charitable. “Benevolent” when used alone and without any limiting words, e.g., words referring to institutions existing at a particular time in a particular locality, seems to me to be so vague and indefinite as not to comply with the test proposed by Lord Robertson in Blair v. Duncan, 1901, 4 P. (H.L.) 1, 39 S.L.R. 212. Lastly, it was argued that there were decisions to the effect that the expression “charitable and benevolent,” when used by a testator with reference to institutions or objects to be selected by his trustees, must be construed as meaning the same thing as “charitable.” There are cases where that has been held, but it cannot seriously be maintained that there is any general canon of construction to that effect. On the assumption that the question is an open one, I prefer, if possible, to avoid an interpretation which gratuitously attributes to a testator the use of meaningless words when there is another construction available which is equally legitimate and which gives its proper significance to every word that he has used. Expressions such as “charitable and useful,” or “charitable and deserving,” are intelligible when used cumulatively, seeing that some charities are not useful and some are not deserving, but the expression “charitable and benevolent,” as applied to the same institution or object seems to me to be mere verbiage. In view of the difference between the laws of the two countries I do not think it material that in England an institution may apparently be charitable and yet not benevolent— In re Best, [1904], 2 Ch. 354. Charities have been founded from malevolent motives, but the author of a business document would not direct the attention of his trustees to this fact. On the contrary, he would, I think, assume that every institution or object which the law regarded as charitable was also benevolent, though he might describe the charity or the benevolence in any particular case as unintelligent or eccentric or misplaced. Of course I am here using the word “benevolent” in its primary and wide sense, and not in the secondary and narrow sense in which one might correctly say that a charitable society is not a benevolent or friendly society. Prima facie, therefore, the expression “charitable and benevolent,” as applied to institutions or objects, ought to be construed not conjunctively and tautologically but disjunctively and so as to give to each adjective its full value. In the clause which we have to construe the disjunctive construction seems to me to be consistent with good grammar and with good sense. It was not argued that the phrase “in Glasgow and Paisley” must be read conjunctively, and that no institution was eligible unless it operated in both cities. The testators, in my judgment, invited every charitable institution and every benevolent institution in existence either in Glasgow or in Paisley at the death of the survivor of them to submit its claim for a dole not exceeding £300, and conferred upon every such institution a legal right to have its claim considered and disposed of by the testamentary trustees in the exercise of an honest discretion, they being the sole and final judges whether any particular institution so qualified ought or ought

Page: 595↓