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as to the validity of this bequest, the trustees purpose of raising an additional territorial of the will took out an originating summons 1 battalion; but that would not be a charitable to determine whether it constituted a good bequest within the meaning of Pemsel's case. charitable gift.
Patriotic purposes ” is a wide and indefinite Russell J.2 held that the gift failed, for the term, susceptible of many interpretations. And, reason that under its terms the trustees could accordingly, on this point also it was held that apply the trust property for purposes not neces- the bequest failed. sarily charitable : and this view, approved by In Tetley two leading (Scottish) cases were the Court of Appeal, was sustained by the referred to and followed-Blair v. Duncan 1 and House of Lords. . There the judgment of the Burns v. Houston. In the former a bequest to Court, delivered by Cave L.C., proceeded on such charitable or public purposes as my the consideration that the words “patriotic " trustee thinks proper
was held to be void for and charitable were to be read not con- uncertainty. The same result was reached in junctively, but disjunctively, and consequently the latter, where the gift was for “public, two distinct classes of objects were open to the benevolent, or charitable purposes.” Examinatrustees, from which they might make their tion of all the recent Scottish cases on this topic selection. An elementary canon of the law of discloses two things. First, the technical exwills requires a testator to make his own will pression of charitable purpose is more and -not leave others to frame it for him.3 The more rigidly insisted upon. Charitable instibequest, therefore, failed for uncertainty.tutions or deserving agencies charitable Charitable trusts are specially favoured by the or other deserving institutions public, Courts, which will sustain a bequest to charity benevolent, or charitable purposes chariteven where only a general charitable intention, able or religious institutions and societies."; without the designation of any definite object, “such educational, charitable, and religious pur
“ can be gathered from the will, or where the poses within the City of Aberdeen as he shall choice of the object to be benefited is left to select -> all these have been held to be bad. the discretion of trustees. But this relaxation But, secondly, the word “ charitable” itself has of the ordinary rule is strictly confined to acquired, under the influence of decisions given charitable trusts as such : the Courts do not in the English Courts, a much wider significance extend it so as to include within its 'ambit than it used to bear. A comparison of two
public" or, as here," patriotic” bequests. cases, decided in 1888 and 1919 respectively, The Lord Chancellor then considered, and makes this clear. In the earlier (Baird's Trs. v. rejected, the view that “patriotic purposes "The Lord Advocate 8) a truster provided by trust should be ascribed to the fourth of the types deed a fund of half a million for the promotion of charitable trust enunciated by Lord Mac- of religion and the mitigation of the spiritual naghten in Pemsel's case. It will be recollected destitution ” which prevailed “among the poor that in this case (the classical case on this and working population of Scotland.” The branch of the law) Lord Macnaghten said that greater part of the income derived from this "Charity' in its legal sense comprises four bequest was devoted to building and endowing principal divisions : trusts for the relief of churches, and a question arose with the Inland poverty ; trusts for the advancement of educa- Revenue authorities whether that income should tion; trusts for the advancement of religion ; be exempt from income tax on the ground that and trusts for other purposes beneficial to the it was money applied to “charitable
purposes community, not falling under any of the pre- within the meaning of the Income Tax Act, ceding heads." Every purpose beneficial to the 1842. The Court held that the words of the community is not necessarily charitable. For Act must be given their ordinary, popular instance, a testator might leave money for the meaning, viz. purposes directed to the relief of
poverty, and that they did not include purposes Actions in the English Courts are usually commenced of general benevolence or public utility. And by a writ: but persons interested under a deed, will, or the Lord President (Inglis) said : It appears other written instrument, may apply by originating to me that 'charity' and 'charitable' have summons to a judge of any Division of the High Court to decide a question that has arisen in regard to such
one sense, and one only, in ordinary familiar instrument. And the matter is normally disposed of in chambers. Where, however, the judge thinks fit, it 1  A.C. 37. may, as in this case, be adjourned into open Court.
 A.C. 337. (1922] W.N. 313: reported under the name In re 3 Symmers' Trs., 1918, 1 S.L.T. 185. Tetley-National Provincial and Union Bank of England 4 Campbell's Trs., 1921, 1 S.L.T. (H.L.) 50. Lid. v. Tetley.
5. Turnbull'8 Trs. v. The Lord Advocate, 1918, 1 S.L.T. • Cp. the dictum of Lord Johnston in Bannerman's (H.L.) 112. Trs. (1915, 1 S.L.T. at p. 145): “The law of Scotland 6 Macintyre v. Grimond's Trs., 1905, 7 F. (H.L.) 90. does not admit of the delegation of the power of testing. ? M'Conochie's Trs., 1909, S.C. 1046.
• Commissioners for Special Purposes of Income Tax v. 8 15 R. 682. Pemsel, [1891) A.C. 531 at p. 583.
• At p. 688.
and popular use. Charity is relief of poverty, by deed in 1813 to trustees upon trust after and a charitable act, or a charitable purpose, payment of costs and outgoings to apply twoconsists in relieving poverty, and whatever goes fourths of the rents and profits for the general beyond that is not within the meaning of the purposes of maintaining, supporting, and adword charity' as it occurs in this statute. vancing the missionary establishments among The Court of Chancery, as we know, has ex- heathen nations of the Protestant Episcopal tended the use of the word “ charity' to very Church, commonly known as the Moravian different purposes—to purposes of general Church; and to apply the remaining twobenevolence and public utility-but I think it fourths for purposes which the Crown admitted is quite impossible, where we are applying the to be charitable. And the question was—as proper rule of construction of a taxing Act, to in Baird's Trs.-whether that portion of the give it any such meaning here."
rents devoted to the purposes of the Moravian The later case is Renouf's Trs. v. Haining, Church should be subjected to income tax. decided in 1919. Here the trustees were directed Income tax has been levied in this country to pay out of the income of my estate the continuously since 1842, and, with one intersalaries of two native missionaries chosen of ruption, it dates back to the end of the eighteenth them, for preaching the Gospel of Jesus Christ century. Every Act has contained an exempting my Lord among the heathen." On a special clause in favour of charity. For over forty case being brought, it was held by the Second years the Inland Revenue had acquiesced in the Division (Lord Salvesen dissenting) that the liberal interpretation accorded by the Courts bequest was valid. The judgment appears to to charitable trusts, and permitted gifts of this have been based upon the case of Allan's sort to enjoy the benefit of the exemption conExr. v. Allan, where a bequest “ for the ferred by the Act of 1842. But, several years benefit of foreign missions in India, China, prior to this case, they began to maintain that Africa, and South America, or any other in the the expression“ charitable purposes. "employed foreign field suitable," was held to be one for in the Act should be construed not in its charitable purposes, and not void from un- technical, legal sense, as established by the certainty. The Scots Courts have indeed pre- decisions of the Courts, but in its ordinary, ferred to sustain these more recent bequests on popular meaning. This was the contention put the ground of dedication to a definite object. forward in Baird's case, and upheld by the But in Baird's Trs. a specific sum was ear
Court of Session. That decision, however, was marked for the purpose indicated, and the disapproved by the House of Lords in Pemsel's locality was fixed in Scotland ; in Haining the case, and they held that the terms of the gift amount of the bequest was not even mentioned, constituted a charitable purpose, so as to come nor in what part of the world the missionaries within the provisions of the Act of 1842, and were to preach. And the expression“ heathen” that, consequently, the income therefrom was was itself far from being unambiguous. On the exempt from tax. Lord Macnaghten pointed other hand the Court, in 1888, had to determine out 1 that the law of England attached a techwhether the object for which the bequest had nical meaning to the word “charity,” and to been made could be considered a charitable the word “ charitable,” in such expressions as purpose within the meaning of the Income "charitable uses," charitable trusts," Tax Act of 1842. In 1919 the question was- " charitable purposes.” And then proceeded Has the testator here made a valid bequest ? to give the definition already cited, which shews Comparing the two, one finds (1) that in 1919 how wide a meaning the English Courts attrithe question did not take the same form as in bute to the term. Historically it is not difficult 1888; (2) that at the later date the Court had to find the explanation of this. The statute 43 regard rather to the alleged certainty of the Eliz. cap. 4 was passed in order to enable the object than to its charitable character. On Courts to “ redress the misemployment of lands, balance, however, it is difficult to think that goods, and stocks of money heretofore given bequests similar to that in Haining or in Allan's to charitable uses. Obviously it was not Exr. would have been sustained had they come unnatural that a tribunal which had this end before the Scots Courts at an earlier period. in view should be disposed to take a liberal The question, then, is—What is the explana- view of what
might be regarded as tion of this change of attitude ? The answer, charitable. And that is precisely what occurred. it is submitted, is to be found in Pemsel's case The Court of Chancery did not confine itself to and in the practice of the Court of Chancery, the examples given in the preamble to the upon which the judgment there was, in part, statute of Elizabeth, but considered merely based. The circumstances in that case were whether any particular case fell within the these : Lands in England had been conveyed general intention of that Act.
1 1919, 2 S.L.T. 15.
2 1908, S.C. 807.
1 At p. 580.
A reference to Jarman on Wills ”? I will pro- who decided the case of Baird's Trs. v. The vide the reader with instances. There he will Lord Advocate held that it was. And again find that the following (to select from among (at p. 814), “ if there be any particular favour many) have been sustained as valid charitable which the law requires Courts to shew in congifts in England--gifts for the erection of water-struing charitable bequests, then I am of works for the use of the inhabitants of a town ; opinion that this particular bequest now in for the establishment of a lifeboat; or of a question falls within that class. "I think that botanical garden ; or a museum ; or keeping is the necessary conclusion from the judgment the chimes of a church in repair ; building an of Lord Watson in the case of Pemsel, where organ gallery in a church ; repairing and orna- his Lordship, after narrating the considerable menting a chancel; or repairing a memorial number of legislative provisions, goes on to say, window; or a parish churchyard ; or for ringing "that Scotch trusts which are ejusdem generis church bells in commemoration of the restoration with trusts falling within the statute of Elizaof the monarchy; establishing and upholding beth (in England) are charitable in this sense an institution for the investigation and cure of that they are all governed by the same rules diseases of quadrupeds and birds useful to man, which are applicable to charitable trusts in and for maintaining a lecturer thereon ; sup- England." That a trust for the benefit of porting societies having for their object the foreign missions falls within the description of suppression and abolition of vivisection; or the “pious and godly uses," which, Lord Watson
, encouragement of the practice of vegetarianism. says, is equivalent to charitable uses, seems to
To these I add a literary example, transcribed me beyond all reasonable doubt.” On the other from the judgment of Lord Macnagḥten in hand, Lord MʻLaren said in the same case 1 that Pemsel : 2 “In one of his essays, Goldsmith tells he “should not be of opinion that a bequest for the story of a French priest at Rheims, so miserly purely religious purposes was entitled to the in bis habits that he went by the name of The benefit of the benignant construction accorded Griper.' Working incessantly in his vineyard, to charitable trusts.” It is submitted, however, steadily refusing to relieve distress, he managed that the later Scottish authorities, which folto save a large sum of money. Then the writer lowed Pemsel's case, and this very case of adds : This good man had long perceived the Allan in particular, scarcely bear out that view. wants of the poor in the city, particularly in In Turnbull's Trs. Viscount Haldane said : ? having no water but what they were obliged "To the expression charitable’ the Courts to buy at an advanced price; wherefore, that respectively of the two countries attach the whole fortune which he had been amassing, he meanings which were discussed in this House laid out in an aqueduct, by which he did the in Commissioners of Income Tax v. Pemsel, poor more useful and lasting service than if he  A.C. 531.". had distributed his whole income in charity If that be so (and such cases as Haining and every day at his door.' »
The story is charm- Allan's Eær. appear to put it beyond doubt), ing, because it is so typically French ; but it it means that the Scottish Courts now read a also shews very clearly the distinction between much broader meaning into the word "charity
charity” in its popular sense of almsgiving than they did when Baird's Trs. was decided. and “charity as understood by the law of The dictum of Lord President Inglis in that case England.
has already been cited. The judgment of Lord It seems clear that the practice illustrated by Shand, who took the same view, was even more these examples owes its origin to the special explicit. He defined 3 the term “charitable purjurisdiction of the Court of Chancery, and has poses” as “relating to funds dedicated to the no analogy with the Scottish doctrine, stated relief of physical necessity or want-to funds by Lord President Inglis in Baird's Trs., given as alms, or as a provision for the relief which restricted the term “charity” to pur- of persons from physical privations or suffering
” poses purely eleemosynary.
arising from poverty, and going no further. And the interesting question that emerges is And he declined to sanction a broader inter- How far has this decision altered the law of pretation.“ If the term cannot be carried to Scotland in regard to charitable trusts? Lord the length of covering all public uses, then is it Kinnear said in Allan's Exr.3 that he himself to be carried to the extent of including funds thought that, since the decision of the House of dedicated for the promotion of colleges, schools, Lords in the case of Pensel, he should not be and educational endowments, and also for the able to admit that the meaning of the word promotion of religion ? For that, I think, there charitable had been in this country so
is warrant. Put so, the meaning of narrowed by popular usage as the learned judges charity” in the law of Scotland is quite clear
Sixth edition, Vol. I. pp. 213-216. * At p. 586.
3 1908 S.C. at p. 813.
1 At p. 817.
2 1918, 1 S.L.T. at p. 114. 3 Baird's Trs., 15 R. at p. 690.
And it is on a recent date certain public bodies have
and definite. But it is very different from that able manner by reason of the small salaries adopted by the English Court of Chancery paid to qualified assistants. In my own case, And it is difficult to reconcile the later Scottish I may say that I am an exile from Scottish authorities with this definition, unless on the legal practice for the sole reason that I find theory that English practice has, through the that I can earn considerably more as an unagency of the Supreme Court of Appeal, qualified clerk in an English solicitor's office modified the Scots law on this point.
than I can as a qualified assistant in my own In conclusion, it may be worth while to country. summarise the special privileges which the It is well known that the various Law law confers upon charitable trusts. Exemption Societies are the “Trade Unions of the from income tax under the Act of 1842 has Profession, but they nevertheless afford much been already dealt with. But, in addition to less protection to the members of the Prothat, they are specially favoured by the law fession in comparison with those unions of in three respects. First, a charitable trust is lesser calling. Occasionally the country solicitor
void for uncertainty. Provided the hears of the prosecution of a poacher in his own charitable intention is clear, the Court will district, but seldom. assist the trustees to carry it out.
On no matter that the bequest is for charitable advertised for a school medical officer at certain purposes without any limitation of area, or salaries. The British Medical Association at charitable purposes, the selection of which has once informed the bodies in question that any been confided to trustees. Renouf's Trs. v. salary under £600 was inadequate, refused to Haining 1 is an example of the former; Cameron's allow the advertisements to be published, and Trs. v. Mackenzie, where there was a bequest requested the profession not to apply for the of residue to "such charitable institutions, appointments. Yet the legal papers in England persons, or objects as the trustees might think and the daily papers in both countries contain desirable,” illustrates the latter. Second, they many advertisements for public and private are not subject to the rule against perpetuities, bodies requiring experienced admitted solicitors i.e., unlike other trusts, they may be permanent. to act as assistant solicitors at salaries round Third, where owing to change of circumstances about £200 per annum—very seldom any more it has become impossible to carry out the than £250—and the applicants are to be testator's original intention, the Court will allow fully experienced in litigation, conveyancing, the funds to be applied to a purpose as nearly advocacy, etc. as possible akin to that contemplated in the The poor exploited solicitors who seek these will. This is called (borrowing English ter- appointments are generally with small means minology) the doctrine of cy-près. For example, and no capital to purchase a practice, and yet where a hospital, founded under an ancient the Law Societies, by allowing these advertisecharity for the maintenance of the poor and the ments, tacitly acquiesce in the payment of sick, had been sold to a railway company, and these inadequate salaries, and by doing so, it was found unnecessary and inexpedient to moreover, cheapen the profession so that it rebuild it, the Court sanctioned a scheme under becomes one to be avoided by younger men which the money would be employed in giving who are about to start their career. out-door relief to the beneficiaries, 3
When we consider that the dustmen in London receive their £5 a week and have no need to dress a part, it makes one feel that the Law Societies should emulate the
example of the British Medical Society, which, Letter to the Editor.
I am given to understand, refuses to insert
advertisements in which they consider inadeSir,- On some few occasions I have seen
quate salaries are offered to medical men. correspondents' letters published in the news From the fact that the Law Societies have made portion of your paper, and I shall be glad if you no prior move in this matter, are we to assume will kindly allow this letter to be inserted with the implied support which it seems is given by a view to assisting those younger members of the Faculties to firms paying their assistant the profession who, after spending a large sum solicitors, acting as managers or at least skilled of money in becoming qualified, are unable to assistants, the present entirely inadequate and earn sufficient to keep themselves in a respect- uncommensurate salaries ? I hope not, and
that in the very near future the Law Clerks, i Cited supra.
qualified and otherwise, will be in the happy 2 1915, 1 S.L.T. 78; see also Wordie's Trs., 1916, position of knowing that the Societies, who 1 S.L.T. 246. 3 Clephane v. Magistrates of Edinburgh, 7 M. (H.L.) 7: would gladly take their subscriptions as
; see also Trs. of Carnegie Park Orphanage, 19 R. 605. members, will, in turn, exercise a protective
interest in their affairs and their remuneration. On 15th July 1922 he collapsed while at work, -I am, Sir, your obedient Servant,
and was removed to hospital, where he died the E. R. M. TAYLOR. same day. The post-mortem examination
shewed that there had been a large hæmorrhage 31 Gloucester Road,
on the brain, otherwise all the arteries of the Finsbury Park, N. 4.
body were healthy. The house surgeon and
doctor of the hospital who made the postFACULTY ADVOCATES.--Mr James
mortem examination attributed death to the Randall Philip, M.A.(Edinburgh),
blow or to some other form of injury. At the (Glasgow), and Mr Thomas Murray Taylor, arbitration the respondents called two professors M.A., LL.B.(Aberdeen), were admitted to the of Birmingham University who gave evidence Faculty of Advocates on 14th March 1924.
to the effect that the hæmorrhage could not
have been caused by any external injury. The At a meeting of the Scots Law Society of appellant averred that she had no suspicion Edinburgh University, held in the Hall of the that the respondents would contend' that Associated Societies of Edinburgh University, injury as the cause of death was impossible, Mr J. N. Dandie, LL.B., president, in the chair and that, being taken by surprise, her legal office-bearers for 1924–25 were appointed as
advisers were unable to consult high medical follows : Presidents, Messrs Geo. J. Tait, S.S.C.; authority until after the hearing, when they Thomas Young, solicitor; and J. L. Clyde ; learned from two eminent brain specialists Hon. Secretary, Mr D. G. Fraser, 32 Charlotte that no such impossibility existed. The County Square; Hon. Treasurer, Mr A. Rankine; Hon. Court judge made an award in favour of the Assistant Secretary, Mr J. R. Philip, LL.B., respondents. The appellant appealed to the advocate ; Delegates to the Associated Societies, Court of Appeal and filed an affidavit setting Megers J. Mill, LL.B., and J. L. Clyde.
out the fact of surprise and exhibiting the
specialists' reports. The Court of Appeal MESSRS MACFARLAN & Thomson, solicitors affirmed the award. Held that the appellant and notaries public, 27 Church Street, Dum- had adduced no ground for interfering with barton, intimate that they have assumed as a
the award. Opinion per Lord Dunedin that, partner Mr Alexander Gibson, solicitor, who looking to the limited jurisdiction given to the has been associated with the firm for some years Court of Appeal by the Act, it would not have as procurator and managing clerk.
been possible for the Court of Appeal to order Mr Gibson received a thorough training
a new trial in any circumstances on the ground Dumbarton and Glasgow, and was a prize of surprise. - House of Lords_(Earl of Birkenwinner in both the Scots Law and Convey- head, Viscount Finlay, Lords Dunedin, Sumner, ancing Classes at Glasgow University.
and Carson).—11th January 1924. The business will be continued under the existing firm name.
Brandon and Wife v. Osborne, Garrett & Co. Ltd.
DECISIONS IN THE ENGLISH
REPARATION NEGLIGENCE REMOTENESS COURTS.
OF DAMAGE CONTRIBUTORY NEGLIGENCE
ASSISTANCE OF PERSON IN DANGER-PERSONAL Golden v. Swift of Coventry Ltd.
INJURY.-- The plaintiffs, who were husband and
wife, were lawfully on the defendants' premises WORKMEN'S COMPENSATION APPEAL ON in the course of transacting business. At the THE GROUND THAT AT THE ARBITRATION APPEL- time of their visit the premises were being LANT WAS TAKEN BY SURPRISE WORKMEN'S repaired. Owing to the negligence of the COMPENSATION ACT, 1906 (6 EDW. VII. CAP. 58), workmen engaged in the repair work, the SCHEDULE II., PARA. 4.-—The appellant was the glass in a skylight in the roof was broken, widow of Richard Henry Golden, who sustained and a piece of the broken glass hit the husband, personal injury by accident on 9th March 1922 who, however, received no outward physical and died four months later. Golden, who was injuries, though he suffered from shock. The a machine tool-fitter, had received a violent wife was not struck or touched by the falling blow on the cheek from a broken axle. He was glass. There was no doubt that she might removed: on an ambulance and treated, but have been injured by it, as she was not in a returned to his work the same day, and con- position of safety. On seeing the occurrence, tinued to work regularly until the day of his she attempted to pull her husband away from death. He was not in the same state of health the place where the glass was falling. She after the accident and complained of his head. had suffered for several years from leg trouble