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Subject_Succession — Trust — Uncertainty — “Such Charitable or Religious Institutions and Societies as my Trustees May Select.”
Facts:

A testator by his trust-disposition and settlement directed his trustees to divide a portion of the residue of his estate “to and among such charitable or religious institutions and societies as my trustees or the survivor or survivors of them may select, and in such proportion to each or any as they may fix.” Held (rev judgment of the Second Division) that the bequest was void from uncertainty.

Headnote:

This case is reported ante ut supra.

The pursuers and reclaimers appealed to the House of Lords.

At delivering judgment—

Judgment:

Lord Chancellor—I do not think it necessary to go through the course of the authorities. I think this question may be decided upon a very simple proposition. In my opinion the testator here has not given a class from which he allowed his trustees to select individually, but he has left his directions so vague that it is in effect giving someone else power to make a will for him instead of making a will for himself, which I conceive to be the objection always entertained where the directions are so extremely vague that you cam not say what it is that the testator meant. In this case the testator has not made any will himself; he has allowed someone else to make a will for him after his death, and that the law will not allow.

I confess I have not been able to entertain much doubt from the commencement of this argument that that is the condition of this will, and I think I am encouraged in the expression of that opinion by finding some variety of opinion among the learned Judges themselves, who nevertheless adhered to the decision of the Lord Ordinary. The Lord Ordinary says it is to be confined to religious societies in the sense of those that are Christian. I do not find that that view is adopted by any of the learned Judges on appeal, and what the particular limit is within which the persons designated, the trustees, are to select I am afraid I have not been able to discover.

It seems to me that the judgment of Lord Moncreiff really disposes of the question quite satisfactorily. I do not wish to add anything to his Lordship’s view. It appears to me that he has satisfactorily answered the whole argument which has now been presented by the respondents. In the result I move your Lordships that the judgment appealed from be reversed and a proper interlocutor made for the purpose of giving effect to the judgment prayed by the pursuers.

Lord Macnaghten—I concur.

Lord James of Hereford—I concur for the reasons which have been given by Lord Moncreiff in his judgment.

Lord Robertson—So do I.

Judgment appealed from reversed.

Counsel:

Counsel for Appellants—The Lord Advocate (Scott Dickson)—Wilson, K. C.— Duncan Millar. Agents— Duncan & Black, W.S.— A. & W. Beveridge, Solicitors.

Counsel for Respondents— Campbell, K.C.— Cullen. Agents— W. & J. Cook, W.S.— John Kennedy, W.S.

Source: https://www.bailii.org/