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Cite as: 1912 SC 387, [1912] ScotCS CSIH_3, 1912 1 SLT 153

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31 January 1912

Burgess's Trustees

Lord President.—The question for determination arises in an action of multiplepoinding brought by the trustees of Charles Burgess. Mr Burgess left certain provisions to his widow, and various legacies to various people,

and then made a special provision as regards the residue. He directed the residue to be put aside to be liferented by Miss Helen Gilchrist, but he made a special provision that the residue was to amount to £2000—in other words, if there was not enough to leave £2000 after all else was paid, the special legacies he had left were to be docked so that the residue should be £2000. As a matter of fact the legacies had to be docked. Then comes the provision upon which the question arises: the testator provided that if Miss Helen Gilchrist died without leaving lawful issue, which is the event that has happened, the said residue at her death should be applied in founding, erecting, and endowing in Paisley an industrial school for females under such rules and regulations as his trustees might see fit to make. The only other matter I need refer to is that of the dates. The date of the will was in 1860; and the testator died in the same year, and the will was registered immediately after. Miss Gilchrist survived him, and eventually died on 10th December 1903.

Now the state of affairs is this: At the date of the will and at the date of the testator's death it would have been possible to found an industrial school under the provisions of an Act of 1854. But during the period by which Miss Gilchrist survived that date, matters have changed, and it is now impossible to found an industrial school, because the matter has been entirely taken in hand by the authorities, and they will only permit industrial schools upon certain conditions. Even supposing then that the sum were adequate, which it is not, it is taken as common ground between the parties that the authorities would not permit an industrial school to be founded in Paisley by these trustees. In these observations I am assuming, or am quite ready to decide, that there is no question but that the term “industrial school” is used in what I may call a technical sense. It does not mean a school where you may be taught a trade, but it means an institution known as an industrial school, and that is common ground between the parties.

The question is whether or not the bequest must be held to have failed, or whether the Court will arrange some scheme under which the money is to be administered. The latter is the view that was taken by the Lord Ordinary. His interlocutor which is under review finds that it is admitted that it is impossible to give effect to the direction of the truster, the late Charles Burgess, relating to the fund in medio by applying it towards founding, erecting, and endowing in Paisley an industrial school for females. His second finding is that the bequest of the fund has not thereby failed as a bequest for charitable purposes of a kind cognate to the aforesaid particular purpose described by the testator. Accordingly he remits to Mr Stair Agnew Gillon, advocate, to consider the cause and whole proceedings and to meet with the parties or their agents, and to adjust the draft of a scheme for the administration and application of the fund; it is against this finding that the present reclaiming note is taken.

There is a most exhaustive and instructive judgment given by a very eminent Lord Chancellor, Lord Herschell, in the case of Rymer v. Stanfield, and I think, in view of that, it would be quite useless for me to go through the cases. His Lordship divides the cases into three categories. The first class is where there undoubtedly is a gift for a charitable purpose, but where the means are not indicated, and where the Court will supply the means owing to the favour that the Court has always shown to charitable bequests. The second class he takes are cases where bequests are given to a society or institution of some sort which does not and never has existed, and where from the mere fact of its non-existence the charitable intention of the testator in that direction is spelled out, and there again the Court will denominate the institution or means by which the charitable purpose should be carried into effect. Last of all he comes to the third class of case, and he there quotes with approbation the language used by Vice-Chancellor Kindersley in the case of Clark v. Taylor, which I think is well worthy of quoting in this case, and it is as follows: “There is a distinction well settled by the authorities. There is one class of cases in which there is a gift to charity generally, indicative of a general charitable purpose, and pointing out the mode of carrying it into effect; if that mode fails, the Court says the general purpose of charity shall be carried out. There is another class, in which the testator shows an intention, not of general charity, but to give to some particular institution; and then if it fails, because there is no such institution, the gift does not go to charity generally: that distinction is clearly recognised; and it cannot be said that wherever a gift for any charitable purpose fails, it is nevertheless to go to charity. In many cases it is difficult to see to which particular class the case is to be referred, and this is, to a certain extent, one of such cases.”

I think that is admirably put. When you come to the concrete, the application, no doubt, in some cases may be difficult, and when one goes through the very large number of decided cases on this subject, no doubt there are some of them in which, speaking for oneself, perhaps one might not have found it easy to spell out of the particular bequest the general charitable intention. None the less the remark I think remains true. It cannot be said that wherever a gift for a charitable purpose fails, the bequest is nevertheless to go to charity, and one must do one's best in each individual case. I do not think it is a right way of treating the authorities to argue that because in one decided case there was what appears to be very little indication out of which a general charitable intention has been spelled, therefore one is necessarily bound in every case to spell a general charitable intention out of very little. I think one is bound to consider each case by itself.

Taking this view of the effect of the decision to which I have just referred, I come in this case to a different conclusion from the Lord Ordinary. I do not think you can spell out a general charitable intention. This man had a perfectly definite view. He knew what an industrial school was; he knew as a matter of fact that at that time a private individual, if he gave the money, could found an industrial school. He wished to do this for Paisley, and he wished the school to be confined to girls and not to embrace boys. That is the thing he wanted, and that has come to be a thing impossible to attain. The bequest seems to me therefore to be in precisely the same situation as if the money had been given to a particular existing institution, and that institution had disappeared before the time when the will came into operation. This seems to me to be giving the money to an existent institution in potentiality, and when the will comes into Operation there is no longer an existent institution in potentiality. I think here it is out of the question to say that the testator had a general charitable intention to girls in Paisley who had temptation to fall—because I think this is the only way in which you could describe the class that would be benefited by such an industrial school—and therefore you are in some way or other to make a scheme for the benefit of this class of person. In other words, although I am perfectly certain that the learned advocate to whom it was remitted by the Court would have done his best, it would have been the will of Mr Stair Gillon and not that of Mr Charles Burgess. Therefore I am of opinion that the bequest has entirely failed.

There is a question raised in the pleadings upon which I give no opinion, because I think it must he decided by the Lord Ordinary—that is, whether the effect of this judgment will be to give the money to the persons who had the docked legacies, or whether it will go to the heirs ab intestato; but this question cannot be decided by us now.

Lord Kinnear.—I agree with your Lordship.

Lord Johnston.—If this bequest is to be carried out cy près, as the Lord Ordinary thinks that it should be, I agree with him that it is necessary that we should be able to find that the testator has evinced expressly or by implication an intention to dedicate his money to charity, independently of the particular modus in which he has directed it to be applied. But I do so with this qualification, that by charity I mean, and understand the Lord Ordinary to mean, not charitable purposes generally, but some charitable purpose in the concrete, definitely, however generally, defined. But I differ from him, in that I do not think that the testator has evinced any such intention.

It is impossible to conceive of any charitable bequest, however restricted in the modus, of which it cannot be said that the granter had the intention of benefiting a class or furthering a charitable object. But it does not follow that he had any such intention apart from the particular object. However benign a construction it may be proper to give to a charitable bequest, still I think that the Court is not entitled to depart from the recognised principles of construction of a testamentary deed, and must find the testator's intention in his words, and not in any speculation as to what he would have done, or intended, in emerging circumstances which he did not and could not foresee.

The present testator has very definitely directed the residue of his estate to be applied in “founding, erecting, and endowing” in Paisley a definite institution, with power—which I think imposes a duty—to make rules and regulations for its conduct, to perpetuate the trust, and particularly “to do every act and deed for the permanency and management of the institution which they may see cause to adopt as fully and freely as I could do myself.” The institution is to be an industrial school, and the objects of the charity are to be females, impliedly of the class and in the circumstances to whom upbringing in an industrial school would be a benefit. Nothing could be more definite or limited in its modus, and it is, I think, impossible, even on the terms of the bequest itself, to find a general intention to benefit the particular class of female children, to whom the training of an industrial school is appropriate, in the way pointed out if possible, but if not in that way, at least in some way.

But I am confirmed in this view, first, by the consideration of the particular class of institution proposed to be established, viz., an industrial school. When the testator wrote, an industrial school was already a well-defined institution. Eeformatory and industrial schools existed prior to 1854, and they are referred to in the Act of that year, which was passed to render them, as already established by parochial boards and associations of individuals, more available for the benefit of vagrant children. They have since become State-aided, and correspondingly under State control. But, though in a very different way, they filled then, as they do now, a felt need. It was an institution of this class which the testator intended to found in Paisley, and he was specially solicitous about its permanency. Quomodo constat that if he had found himself forestalled, had found that the effect of supervening legislation had been to make such a private foundation neither possible nor necessary, he would have made or continued his bequest for the benefit generally of the class for whom industrial schools are provided. Neither the expression nor the scope of his bequest justifies any such conclusion, Second, by the consideration that the testator had so pointedly before him his conception of an institution, that he declared that if the residue, on a final scheme of division, should be found not to amount to £2000, the legacies which he bad appointed to be paid should abate so as to bring up the residue to £2000. He thus shows that he prefers his scheme of an institution to his legatees. But it is impossible, except on mere speculation, to say that the testator would have fixed the same sum of £2000 as the minimum for a cy près application of his funds by the Court, and would have docked his legacies to secure that amount of residue for that purpose. And if, therefore, there is no justification for trenching upon the legacies,—or indeed, as I think, no power either in the trustees or in the Court for so doing,—to make up the £2000 for a cy près application, it follows that there is no justification for so applying the residue itself, which happens to be much less than £2000.

I think that the Lord Ordinary has been misled by the case of Biscoe v. Jackson . The language used there by the learned Judges is, I think, far too wide for the case before them, and I question whether it was really intended by them to be taken in its wider sense, and not as restricted secundum subjectam materiam. The testator's purpose was to establish a soup-kitchen and cottage-hospital for the parish of Shoreditch, and the form of his bequest indicated that he intended land free from the restrictions of the law of mortmain to be acquired for the purpose. This proved impossible, for reasons which I do not pretend to understand, but it was clearly not impossible either to find the necessary land in the neighbourhood of Shoreditch or to establish the hospital and soup-kitchen without acquiring the fee-simple of the site. The wide language used about general intention to benefit the poor of Shoreditch to the effect of entitling the Court to direct a scheme for that Purpose seems to me to be somewhat beyond the mark. All that was really necessary for judgment is contained in the last few words of the opinion of Kay, J., where he says: “But also I am not satisfied that because land cannot be found to build a cottage-hospital or soup-kitchen upon it, there may not be other modes of establishing a cottage-hospital or soup-kitchen within the parish of Shoreditch, which may carry out the testator's intention.” To reach that eminently reasonable conclusion, and such very modified application of the doctrine of cy près, I do not think that the general exposition of the law on that subject was necessary, and I do not think that it would be at all safe to take it in its wide generality and to apply it to the present case.

If I might venture to express my opinion in terms borrowed from the service of heirs, I should say that there was here no general bequest for charity; that there was here no general special bequest for charity; that there was here a special bequest for charity, limited by the mode dictated; and that, the mode having proved impracticable, the bequest has failed.

Lord Mackenzie.—The testator's direction to his trustees is that the residue of his estate is to be applied by them “in founding, erecting, and endowing in Paisley an industrial school for females under such rules and regulations as his trustees might see fit to make.” In the event of a deficiency, the residue was to be made up to £2000 by the special legatees suffering a proportional diminution of their legacies. As the Lord Ordinary states, it is common ground between the parties that it is not practicable now to institute such a school as the testator contemplated. This was the footing upon which the case was argued. In any view the sum of £2000 would not have been adequate for the purpose. At the date of the will in 1860 it would have been possible under the then existing legislation for voluntary contributions to be received in aid of an industrial school. This is no longer possible. A reference to the terms of the Act 8 Edward VII. cap. 67 shows that such voluntary contributions, if received, would merely go to relieve the rates.

The bequest of the testator being in its terms impracticable the question is whether the case is one for the application of the cy près principle. The principle is stated in the passage of Lord M'Laren's opinion in Young's Trustee v. The Deacons of the Eight Incorporated Trades of Perth quoted by the Lord Ordinary in his opinion. If there is an absolute dedication of the fund to the purpose of charity generally, or if it can be affirmed that the testator has preferred the general object of charity to his residuary legatees, the principle of cy près may be applied—otherwise not. Was the testator's object here to establish a charity for the benefit of a certain class, with a particular mode of doing it? or was the mode of application such an essential part of the gift that it is not possible to distinguish any general purpose of charity? I am unable in the present case to put the same construction on the bequest as the Lord Ordinary. I think the terms of the bequest exclude the idea that the testator intended his trustees to give effect to a general charitable object. In 1860 an industrial school was a quite well-known definite entity, brought into prominence by recent statutes. At the time the testator made his will the field was not fully occupied—now it is. Therefore the only mode of doing a charitable act which the testator contemplated is no longer possible; he had no general intention of giving his money to charity, and the Court cannot, because the particular mode has failed, apply the cy près principle. The case founded upon in the Lord Ordinary's note of Grant v. Macqueen does not appear to me to be analogous. There the sum was left in order that the interest might be paid to the person officiating for the time as schoolmaster in connection with the Established Church in a certain parish. Some years after the testator's death there ceased to be a schoolmaster answering the description. The fund was then claimed by the residuary legatee, who was himself the successor of the person who had closed the school. As Lord Deas pointed out, it would have been odd if the result of closing the school had been to put money into the pocket of his successor. The view upon which the Court proceeded was that the bequest had not lapsed, because there might at some future date be a person answering the description of a schoolmaster in connection with the Established Church; and in the succeeding stage of the case—M'Dougall—the Court approved of a scheme dealing with the fund in question so long as there should be no schoolmaster. There are cases closer to the present, of which I may take as an example In re Rymer. There the testator bequeathed a legacy of £5000 “to the rector for the time being of St Thomas' Seminary for the education of priests in the diocese of Westminster for the purposes of such seminary.” At the date of the will St Thomas' Seminary was carried on at Hammersmith, but shortly before the testator's death the seminary ceased to exist, and the students who were being educated there were removed to another seminary near Birmingham. It was held by the Court of Appeal, consisting of Lord Herschell, L.C., and Lindley and A. L. Smith, L.JJ., affirming the decision of Chitty, J., that the bequest was for the benefit of the particular institution, and that institution haying ceased to exist in the testator's lifetime, the legacy could not be applied cy près, but lapsed and fell into the residue. That case is very like the present, and affords a contrast to Biscoe v. Jackson, where a testator directed his trustees to set apart a sum of money out of such a part of his personal estate as might by law be applied for charitable purposes, and to apply it in the establishment of a soup-kitchen and cottage-hospital for the parish of S. in such manner as not to violate the Mortmain Acts. There it was held that the will showed a general charitable intention to benefit the poor of the parish of S., and that although the particular purpose of the bequest had failed the Court would execute the trust cy près; and a scheme was directed accordingly.

I am accordingly of opinion that the bequest has failed, and that this is not a case for the application of the cy près principle. The case ought therefore, with findings to this effect, to go back to the Lord Ordinary to determine the further matters in dispute between the parties.

[1912] SC 387

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