Scottish Court of Session Decisions

This special case was brought for determining whether the directions of James Cleland, who died on 9th September 1900, for the disposal of the residue of his estate, were valid and effectual or whether they were void from uncertainty.

By trust-disposition and settlement dated 16th September 1898 and registered in the Books of Council and Session 15th September 1900, the testator, inter alia, after making provision for his wife Mrs Isabella Jackson or Cleland, in full of the whole claims, legal and conventional, competent to her against his estate in the event of her surviving him, and after granting certain specific legacies, directed and appointed his trustees as follows, viz. — “To divide and

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apportion the whole residue and remainder of my means and estate, in such proportions as they may consider proper, amongst such charitable institutions connected with the county of Lanark as they may consider expedient, and of which they in their discretion shall be the sole judges, with power, if they think fit, to pay over the whole to one such institution: Declaring always, as it is hereby specially provided and declared, that no one shall be entitled to interfere with my said trustees in the exercise of the above discretion, or to object in any manner of way to the selection which they make of such institutions as are to be the recipients of any portion of the residue and remainder of my means and estate hereby bequeathed.”

The testator was survived by his wife who accepted of her provisions under the said trust-disposition and settlement. His estate amounted to nearly £3000, of which about £900 was heritage. There were no children of the marriage.

The first parties to this case were the trustees acting under the trust-disposition and settlement, the second party was a nephew and heir-at-law of the testator, and the third parties were the nephews and nieces of the testator, his heirs in mobilibus.

The questions of law were as follows:—“(1) Are the said directions in James Cleland's trust-disposition and deed of settlement as to the disposal of the residue and remainder of his estate valid and effectual, or (2) Are the said directions void from uncertainty and invalid and ineffectual to dispose of said residue and remainder of James Cleland's estate, and does said residue and remainder form intestate succession of James Cleland falling to the second and third parties as his whole heirs in intestacy.”

The first parties maintained, and argued—The directions for the disposal of the residue were valid and effectual. There was no difficulty or uncertainty in carrying out the bequest, for there was no alternative to charitable institutions as there had been in Grimond or Macintyre v. Grimond's Trustees, March 6, 1905, 7 F (HL) 90, 42 S.L.R. 466. A direction to trustees to pay to such charitable institutions as they might think proper was valid and effectual — Cobb v. Cobb's Trustees, March 9, 1894, 21 R. 638, 31 S.L.R. 506; Blair v. Duncan, December 17, 1901, 4 F. (H.L.) 1, 39 S.L.R. 212, and the addition of a territorial limitation could not render invalid what otherwise would have been valid.

The second and third parties maintained, and argued—The bequest was void from uncertainty. “Charitable institutions” would have been effectual, but the addition of the qualification “connected with the county of Lanark” made the bequest void from uncertainty. That was not a geographical limitation, for a person resident anywhere might have some connection with that county. What the nature of the connection must be was impossible to discover. The following authorities were referred to— Murdoch's Trustees v. Weir &c., December 7, 1906, 44 S.L.R. 171; Dick's Trustees v. Dick, July 28, 1906, 14 S.L.T. 325; Shaw's Trustees v. Esson's Trustees, November 2, 1905, 8 F. 52, 43 S.L.R. 21; Hill, &c. v. Burns, April 14, 1826, 2 W. & S. 80.