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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Nasmyth's Trustees v. National Society for The Prevention of Cruelty to Children, and Others [1914] UKHL 725 (14 July 1914) URL: http://www.bailii.org/uk/cases/UKHL/1914/51SLR0725.html Cite as: [1914] UKHL 725, 51 ScotLR 725 |
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Page: 725↓
(Before
(in the Court of Session, December 17, 1912, 50 S.L.R. 271, and 1913 S.C. 412.)
Subject_Succession — Testament — Proof — Designation of Beneficiary — Extrinsic Evidence.
A Scotsman, resident in Scotland, by a Scots testament left a number of legacies to Scotch charities. He also left a legacy to “The National Society for the Prevention of Cruelty to Children.” This legacy was claimed by a society having its headquarters in London. It was also claimed by a Scotch society whose correct designation was “The Scottish National Society for the Prevention of Cruelty to Children,” on averment that it was the society the testator meant. This it endeavoured to establish by inference from the testator's domicile, his other bequests, his knowledge of the society.
Held ( rev. judgment of the Second Division) that in the absence of clear proof of a contrary intention the accurate designation of the London society must be given effect to, and that society preferred.
This case is reported ante ut supra.
Following upon the interlocutor of 17th December 1912, under interlocutor of 20th March 1913, a proof was taken before Lord Salvesen, the import of which appears in the opinions of their Lordships of the Second Division, who on 5th July 1913 pronounced an interlocutor preferring the Scottish National Society for the Prevention of Cruelty to Children to the fund in medio, with expenses.
The effect of what is proposed on the part of the Society of London is that a desire for the protection of children uttered by a Scotsman, and a bequest given by a Scotsman to aid that desire, is to be of no benefit whatever to any Scottish child, or to any society that protects children in Scotland, but that the money is to be carried off to London and none of it is to be applied for any Scottish purpose whatever. Now that is rather a strong thing to ask for, but of course one always says if it is the law it must be carried out.
This Society carries on work in London, and is no doubt under its charter a National Society for the Protection of Children. But it is a National Society which recognises that it has nothing to do with Scotland. It has no duties in Scotland; it says it has none, and it does not fulfil any. But the peculiarity of this case is that in the two societies which had been formed there was a movement for affiliation; and the Scottish Society was most willing to affiliate with the English Society upon one condition, very expressly indicated, that if any Scottish testator left money to the Society it was to belong to the Scottish branch. When things were in that position this gentleman left a sum of £500 to the National Society for the Prevention of Cruelty to Children, and that sum necessarily, if he had died before 1907, must have come to Scotland. About that there cannot be a shadow of doubt. By the arrangement and the condition which the English Society agreed to that money would have come to Scotland.
Then it turned out that there was some legal difficulty about this affiliation. Apparently counsel both in England and in Scotland advised that they had no right to make it, and it was abrogated; but in no way did that alter the work that was carried on, because the work was carried on in England by the English people and in Scotland by the Scottish people. But there was nothing to indicate to the testator that any change had taken place at all. This affiliation subsisted until 1907. Now at the time that the testator made his will, could it be suggested for a moment that he did not intend the money to go to Scotland? If
Page: 726↓
I am not sure that even if it had been brought home to the knowledge of this gentleman that the affiliation had been broken up there might not have been considerable ground for saying still that upon the face of his proceedings he did intend to benefit Scotland and not to benefit England. That this bequest is mixed up with a number of other bequests is significant. He gave instructions to his solicitor to draw up his will in a particular form, and he gave instructions and notes. In note 22 we have a string of bequests, and each of these is a bequest for the purpose of helping some institution in Scotland except this one, if the contention of Mr Constable is sound. Practically in the middle of the list you have—the National Society for the Prevention of Cruelty to Children £500.
If there is room for interpretation at all in such a case, I should say that if there is a National Scottish Society for the purpose of preventing cruelty to children it would be reasonable to read his bequest as meaning that it is that Society he desires to favour. But I do not think there is any necessity to go upon that in the special circumstances of this case, where most undoubtedly at the time he gave these instructions the instructions meant that the £500 was to go to Scotland and not to England. That being so, I think it is vain to say that he must have seen—because he was a Scotsman—that some alteration had taken place as regards affiliation and that that made a difference. There is no evidence that he had seen it; and there is no evidence either of any desire on his part whatever to benefit the Society in England, whereas he did indicate an interest in the prevention of cruelty to children in his neighbourhood, and knew that there was a society and that it had officials for the purpose of carrying out the work of the society.
On the whole matter, and really without difficulty, I come to the conclusion that the judgment the Lord Ordinary pronounced has not been impinged upon by the proof which has been led, but rather supported, and that we ought to adhere to his interlocutor.
Now the facts as so ascertained are that this gentleman was a Scotsman whose whole interests were in Scotland, who very rarely visited England at all, who knew of the existence of the Scottish Society for the Prevention of Cruelty to Children in Scotland, and who was not known to have had any knowledge whatever of the English Society. The objects of his beneficence otherwise are purely Scottish. These being the ascertained facts of the case I think there can be no moral doubt that when the testator used the designation the National Society for the Prevention of Cruelty to Children he intended to benefit the Scottish Society. I agree with what your Lordship in the chair has said, that the word “national” may be used in two senses. A Scotsman generally speaks of institutions the full name of which may be “Scottish National” or the “National of Scotland” by using the description “national.” He feels no occasion when he is speaking in Scotland to differentiate the institutions of this country from institutions similarly named in England. He speaks of a Scottish thing in Scotland, and he speaks of it as a Scotsman generally does.
This is not a case of a designation which does not fit a Scottish society such as the testator intended to benefit. No doubt it is true that the designation is the complete designation of the London Society, and is not the complete designation of the Scottish Society, because the London Society having come into existence first it was necessary to differentiate between the two by indicating that the sphere of operations of the Scottish Society was confined to Scotland. At the same time one cannot resist the view that the testator's intention was to benefit the Scottish Society, of which he knew, and not to benefit a society with which he had never come in contact, and of which, so far as the evidence goes, he had no knowledge whatever.
It is an additional speciality of this case, to which your Lordship has referred, that at the time the will was drawn the funds bequeathed by Scottish testators to the National Society for the Prevention of Cruelty to Children would under a domestic arrangement between the Scottish branch and the general Society have gone to Scotland. But apart from that altogether, I think here there is sufficient ambiguity in
Page: 727↓
On these grounds, which are substantially those on which the Lord Ordinary has proceeded, I am of opinion that his interlocutor should be affirmed.
It is certainly not impossible, even in such circumstances, that the testator might have desired to benefit the English Society, which no doubt is in itself an excellent Society, and is dealing incidentally with Scottish children in England. But certainly, although not impossible, it would not be probable that being interested as he evidently was in children, his own bequest would have been to a society which is purely an English Society, having only incidental and remote interest, the one I have mentioned, in Scottish children.
Mr Constable argued that there was no room here for evidence at all, because the description of the Society which he represents is exactly given by the testator, and that is a description which does not fit any other society; and he maintained that if his clients were in that position the Court was bound to give effect to his claim without any other consideration. It is not necessary to consider what the result might be in a case where you had a description which did not contain any word that was possibly ambiguous, such as some of the illustrations which were given to us in the course of the argument. Here you certainly have the adjective “national,” a word which seems to me to introduce such ambiguity as makes it possible for evidence to be competently submitted to the Court.
If evidence is to be considered, then it appears that the parties are agreed as to the origin of this bequest. It goes back to the year 1904, at which time a legacy, in the terms here contained, would have gone to the Scottish Society, and would have been spent for the benefit of children in Scotland. Moreover, these notes, which are under that date, were the foundation of the will of 1906, the first will he made. At that time the same result would have followed, because it was not until 1907 that the alteration was made under which we are now considering the present question.
The will of 1911, that we are now considering, is, however, admitted to be, in the words of Mr Constable's clients, “a verbatim copy of an earlier will made by him in 1906.” That seems to me, as your Lordship in the chair has said, to be a special element, which would be sufficient for the decision of this case; but if one looks at evidence contained in the proof and other matters, it appears that he, so far as we know, never heard of the English Society. He was not a member of the Scottish Society and did not contribute to it, but he certainly knew about it and had an interest in it, that interest being in regard to a particular case connected with his own estate, which got the benefit of the Society's operations.
On the whole matter I think there can be no moral doubt whatever of the man's intention; and I think there are ample legal grounds for supporting the judgment of the Lord Ordinary.
The claimants, the National Society for the Prevention of Cruelty to Children (the London Society), appealed to the House of Lords.
At delivering judgment—
In this case a Scotchman living in Scotland left by a Scotch will £500 to the “National Society for the Prevention of Cruelty to Children,” using that name to describe the legatees. That is a Society with its headquarters in London, which does not appear actively to operate in Scotland. Now there is a Scottish National Society for the Prevention of Cruelty to Children also in existence, and it claims that under the circumstances it is entitled to this bequest. The Courts in Scotland have said, we will examine—and they did examine—the circumstances of the testator, and the evidence in regard to his presumed intention; and they came to the conclusion that the testator did really intend to benefit, not the Society which he had by name designated but the Scottish National Society for the Prevention of Cruelty to Children.
I regret, as I always must do in differing from the Court of Session, that I am unable to come to that conclusion. When Mr Younger opened his argument he laid down as a general proposition that when once a legatee is accurately named in a will then the rigid rule descends which forbids under any circumstances any further inquiry or consideration in regard to the person who is to take the benefit.
I am not prepared to affirm so wide a statement. I do not enter upon it now; if I did so the discussion would be academic,
Page: 728↓
I think that the true ground upon which to base a decision in this case is this, that the accurate use of a name in a will creates a strong presumption against anyone claiming who is not the possessor of the name mentioned in the will. It is a very strong presumption, and one which cannot be overcome except in quite exceptional circumstances. I use as a convenient method of expressing one's thought the term “presumption.” What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said. Mr Shaw—in an argument from which I derived profit as well as pleasure—said that you have first to establish an ambiguity and that then the scales would be even; the statement in itself, if you do establish an ambiguity, is a very accurate statement. In that way he proposed to displace presumption.
I do not think that in this case any ambiguity has been established. The position is that a name apt to describe a certain society has been used, and it is necessary for those who question the right of that society to displace the inference which arises from that designation. Counsel for the respondents sought to do so by saying that the name of the society is not necessarily to be treated in the same way as that of an individual, and the presumption is not so strong that the society was intended, as in the case of an individual. It is a circumstance perhaps to be considered, but I confess I do not see that there is much difference between the two.
It was then urged that in the mouth of a Scotsman the use of the term “National Society “would of itself mean the Scottish Society; but it must be remembered that the testator here used this term not as expressive of his own thoughts but as part of a title or name which had been adopted by people living outside Scotland. It was then urged that the other charitable bequests in the will were given to Scottish charities. I do not see what conclusion is to be derived from that; perhaps that was a reason for thinking that in this part of the will England also should participate. It was said that being a Scotsman he probably meant to benefit Scotsmen. I should think that very likely; but I do not know why he would not also wish to benefit others of his countrymen living in the southern part of the Island. We were told that all his interests and his residence were to be found in Scotland, and that he actually knew of a case and had had brought to his notice a case in which the Scottish National Society had intervened.
I think that concludes the evidence by which it is sought to strike out from a will the name of the society designated in that will to receive the bounty of the testator and to substitute the name of another society, of which there is actually no proof that the testator ever heard. With the utmost respect to their Lordships of the Court of Session I am quite unable to accept that view and I think this appeal ought to be allowed.
Now I think that the argument, as is really almost now conceded, of the appellants' learned counsel in this matter went too far. He would have it that so long as you had an accurate description of one person, and that accurate description did not exactly fit in its terms another person, no ambiguity could arise. I do not think that is the law. I think that the test whether an ambiguity does arise would be quite fairly put in what I ventured to put at a very early stage of the argument, namely, would the description, standing as it does, supposing there had been no competitor who had the exact name, have fitted the second competitor? If that is so, I think the question of ambiguity arises, but then that question of ambiguity has to be solved. The meaning of a question of ambiguity arising is this—that it allows of an inquiry, not into intention, but into any such facts and circumstances as may help to give you a key to the meaning of the words which the testator used.
Now we have gone into that inquiry. I do not myself put it so much as my noble and learned friend who has just spoken has done, as a presumption, but I put it thus—that here you have an accurate description of the one person and a description which is admittedly not quite accurate of the other. You must, I think, have positive evidence of some cogent sort to make you prefer the latter to the former. Such evidence unfortunately in this case I do
Page: 729↓
Now it is sought to show that he meant some other society not the society which he so describes, but it appears to me that this one circumstance disposes of the case—that there is no sufficient evidence to show that he intended to benefit any society different from that which he has accurately described. His language is in no way ambiguous; he selects the name and description of the society which it bears, and which no other society bears. I think therefore that there is no reason to apply any principles applicable to a case where an ambiguity is raised, in the face of the man's will and of its terminology.
So far as the extrinsic facts are concerned I think that most of the evidence here is quite irrelevant and inadmissible, but so far as it is relevant and admissible it appears to me to be of little or no assistance. I agree with the view put forward by the noble and learned Earl on the Woolsack that the accurate use of the name “The National Society for the Prevention of Cruelty to Children” creates a very strong presumption in favour of the institution so named. What a man says ought to be acted upon unless it is really shown to be wrong, and so far from its having been shown to be wrong in the present instance I think that no evidence has been brought before your Lordships' House which in any way interferes with the presumption as to the accurate use of the language in itself.
I agree with the motion of the noble and learned Earl on the Woolsack.
Their Lordships reversed, with expenses, the interlocutor appealed from.
Counsel for the Claimants and Appellants (the National Society for the Prevention of Cruelty to Children)— Younger, K.C.— Church. Agents— John Burns, W.S., Edinburgh— Church, Rackham, & Company, London.
Counsel for the Claimants and Respondents (the Scottish National Society for the Prevention of Cruelty to Children)— Clyde, K.C.—The Hon. A. Shaw. Agents— R. C. Gray & Paton, S.S.C., Edinburgh— Lithgow & Peffer, London.
