Allan's Executor v. Allans and Others [1908] ScotLR 579 (17 March 1908)

Allan's Executor v. Allans and Others [1908] ScotLR 579 (17 March 1908)

The bequest to 'foreign missions' is not void for uncertainty because the class is sufficiently defined and the appointment of the executor imports a discretionary power of selection among that class. The bequest is a charitable bequest entitled to favourable construction, and the executor is empowered to select the beneficiaries. The Lord Ordinary's interlocutor allowing proof of averments is recalled, and the executor is permitted to lodge a claim to execute the trusts of the will.

Citation
[1908] ScotLR 579
Parties
Pursuer (real Raiser): Rev. William Watson (Executor of Donald Allan, M.D.); Claimants (reclaimers): Robert Allan and Others (Next-of-kin); Claimants (respondents): Very Rev. John M'Murtrie, D.D. and others (Foreign Mission Committee of the Church of Scotland); Claimants (respondents): Rev. Alexander Miller, D.D. and others (Foreign Mission Committee of the United Free Church of Scotland)
Jurisdiction
Scotland
Judgment Date
17 March 1908
Procedural Posture
Multiplepoinding (interpleader) Action / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary
Outcome
Lord Ordinary's interlocutor recalled; case remitted to allow the executor to lodge a claim and for further procedure.
Legal Topics
Uncertainty in Testamentary Bequests, Charitable Bequests, Executor's Powers, Construction of Wills, Religious and Charitable Purposes
Succession Trusts and Estates Charities Law Uncertainty in Testamentary Bequests Charitable Bequests Executor's Powers Construction of Wills Religious and Charitable Purposes

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Parties

Rev. William Watson (Executor of Donald Allan, M.D.)

Pursuer (real Raiser)

Robert Allan and Others (Next-of-kin)

Claimants (reclaimers)

Very Rev. John M'Murtrie, D.D. and others (Foreign Mission Committee of the Church of Scotland)

Claimants (respondents)

Rev. Alexander Miller, D.D. and others (Foreign Mission Committee of the United Free Church of Scotland)

Claimants (respondents)

Procedural Posture

Multiplepoinding (interpleader) Action / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary

Legal Issues

  1. 1 Whether a residuary bequest 'for the benefit of Foreign Missions in India, China, Africa, and South America, or any other in the foreign field suitable' is void for uncertainty
  2. 2 Whether the executor has a discretionary power of selection among a class of charitable objects
  3. 3 Whether the bequest is entitled to favourable construction as a charitable bequest

Ratio Decidendi

The bequest to 'foreign missions' is not void for uncertainty because the class is sufficiently defined and the appointment of the executor imports a discretionary power of selection among that class. The bequest is a charitable bequest entitled to favourable construction, and the executor is empowered to select the beneficiaries. The Lord Ordinary's interlocutor allowing proof of averments is recalled, and the executor is permitted to lodge a claim to execute the trusts of the will.

Court Disposition

Lord Ordinary's interlocutor recalled; case remitted to allow the executor to lodge a claim and for further procedure.

Orders

  • Recall of Lord Ordinary's interlocutor allowing proof of averments.
  • Remit to Lord Ordinary to allow the pursuer and real raiser (executor) to lodge a condescendence and claim, if so advised.