if he withdrew within five years. All that he says is that he was not told that he would not get it back in that event.

"Whatever the agent's representations may have been, the rights of parties fall to be regulated by the certificate and prospectus which the pursuer had in his possession for nearly three years and must have been familiar with.

"I think it clearly appears from the conditions on the certificate and in the prospectus, that in the event of a bond being drawn in the ballot, and in that case only, an advance would be made repayable without interest, and also that such advance would only be made on condition that the future monthly instalments were regularly paid. This appears both from the prospectus and certificate. The third condition is in the following terms-[quoted above]. As to the repayment of premiums or payment of surrender value the conditions are to the following effect-First (Condition 4)-[quoted above]. Condition 5 is as follows-[quoted above].

"It is quite true that it is not expressly conditioned that a member withdrawing within five years shall not be repaid any part of the instalments paid by him. But the conditions which I have quoted are absolutely inconsistent with the notion that a member who withdraws within the five years shall be repaid any part of the instalments paid by him. The pursuer has not subscribed for five years, and accordingly, as I read the conditions of the contract between him and the defenders, he is not entitled to any repayment.

"Again, the pursuer pleads that he is entitled to get his money back, because the defenders ran no risk. The first answer to this is, that by agreeing to the conditions he agreed that he should be repaid in the event of withdrawal only in the case and in the manner therein provided. But further, apart from other advantages, the pursuer has all this time had a chance of being drawn in the monthly ballots and obtaining an advance free of interest. If the pursuer had averred that these ballots were a fraud, or were unfairly conducted, there might have been a case for inquiry. But all that is said in the addition made for the pursuer is that he believes and avers that the number of bonds drawn in the ballots is quite insignificant in proportion to the number issued by the defenders. The whole scheme disclosed in the prospectus, and conditions to which the pursuer must be held to have assented, is absolutely inconsistent with the right of members to withdraw at any time and receive repayment of the instalment in full. Such a right would make it impossible for the company to make advances to those members who were successful in the ballots. The case is entirely different from those cases of fire and marine insurance in which the risk not having begun, premiums paid were held to be returnable.

"Lastly, it is said that such ballots are struck at by the Lottery Acts. The decision in the House of Lords in Wallingford v. The Mutual Society, L.R., 5 App.

Cas. 685, seems to be an authority directly to the opposite effect. Apart from this the pursuer is in petitorio, and if the ballots are illegal it does not follow that he is entitled to repayment. On the contrary, the general rule is that the Court will not assist either party to an illegal contract to recover money paid under it. The scheme to which the pursuer agreed may or may not have been an advantageous one for subscribers. Of this I have no means of judging. All I decide now is that if it is to be impugned with success, it must be assailed on other and stronger grounds than those stated in this record."

The pursuer reclaimed, and argued―(1) He was entitled to a proof of his averments that the defenders had run no risk, and had given him no consideration. The society stood to gain and never to lose, for even if advances were made they could demand security for the payment of future instalments, and they were to be the judges of its sufficiency. If this were so, there was no valid contract, and he was entitled to demand back his money. (2) There had been breach of contract, because nothing being said about his not being allowed to withdraw, the contract was to be construed against the company if there was ambiguity. He was therefore entitled to repay. ment, or at least to the surrender value of the bond. (3) At the end of thirty years he would merely get back his own money. He could only benefit under a system of lottery, and that was illegal. He was not seeking to benefit by the lottery, and therefore was entitled to plead the Lottery Acts, and to ask for repayment. The case was different from that of Wallingford (below), because there all participated, and only the order was determined by ballot. Here only those successful in the lottery were benefited. This was a lottery in the plain dictionary sense of the word, and that was the proper definition of the termsee Taylor v. Smetten, 1883, 11 Q.B.D. 207; see also Sykes v. Beadon, 1879, 11 C.D. 170 (Jessel M.R); Barclay v. Pearson, L.R., 1893, 2 Ch. 154.

Argued for respondents - (1) No provision of the Lottery Acts had been cited making this contract illegal. Besides, these were penal statutes which made no provision for repayment of money-Paterson v. Macqueen & Kilgour, March 17, 1866, 4 Macph. 602; Howard v. Refuge Friendly Society, 1886, 54 Law Times, 644. If the pursuer's argument were sound, anyone who had taken a raffle ticket during the last four year might demand repayment of his money. The ballot here was merely incidental to the contract, and therefore not illegal-Wallingford v. Mutual Society, 1880, 5 App. Cases 685. Even if illegal it did not render the whole contract nugatory. (2) There had been no breach of contract. The contract was to pay in thirty years, and in certain circumstances to make an advance. These stipulations they were prepared to implement. There was clearly by necessary implication no right to withdraw at will. The pursuer was not entitled

Assocn. of London

8, 1894

to repayment merely because he had come to think the bargain a poor one.

At advising

LORD PRESIDENT-I am entirely satisfied of the soundness of the interlocutor, and of the reasons given by the Lord Ordinary.

By the contract in question the pursuer agreed to pay to the defenders £1, 1s. 8d. each month during thirty years, the defenders binding themselves, on the other hand, to pay to the pursuer £500 on the expiry of the thirty years. This is the main part of the contract, but the pursuer was also to be entitled to a chance of getting an earlier payment of his £500, and, if he desired it, to a loan of money.

The pursuer has come to think-and this may for all I know be a very sound opinion that he has made a bad bargain, and he begins by saying that it is illegal. This contention is founded on the Lotteries Acts. The plea-in-law does not conduct the argument to the necessary conclusion that the pursuer is entitled to get back the moneys which he has paid, for it ends with the assertion that the contract was illegal. Even this abstract proposition, however, seems to me to be unsound. All that is done by lot under this contract is to settle which of the bondholders shall get paid before the normal period. The reclaimer made only a very general reference to the provisions of the Lotteries Acts, and did not come to close quarters with them. I am not aware that there is any statute which forbids all and any resort to lot in all and any money matters. Nor do I see how the present contract is nearer the Lotteries Acts than the contract in the case of Wallingford, and even assuming there to be some margin of difference, the degree of remoteness is not substantially reduced. In Wallingford Lord Selborne pointed out that there was no gambling transaction and no lottery office at which the public were invited to pay for lottery tickets; and having done so his Lordship says "No case, therefore, in my judgment was made worthy of a moment's consideration in support of the contention that these were illegal transactions under the Lottery Acts."

Well, then, if this bargain be not illegal, and as the pursuer admits that he cannot have it reduced on any other ground, how stands his present claim? The defenders, standing to this valid contract, are willing when the time comes to fulfil the obligation which they granted to the pursuer to pay him £500. The pursuer's plea that his money has been paid without consideration is contradicted by the fact that he holds this obligation of the defenders. Nor does the contract bear out his argument that it either leaves him or permits him this remedy. It is quite plain that these moneys are not deposited with the defenders; the nature of the business forbids the idea. They are paid to the defenders for their own behoof and are necessarily used by them to provide for other cases as well as for this. Apart from express stipulation for a return of the

moneys paid by the bondholder on his option, it would be hard to infer from the main part of the contract what is really a right to rescind it, but I agree with the Lord Ordinary that the 5th article by expressing the condition of matters in which a return of the moneys might be required, by implication excludes that demand in other circumstances.

LORD ADAM-Upon the construction of this contract I have nothing to add to the opinion of the Lord Ordinary. I think it is clear upon the contract that the pursuer is not entitled to have his money back.

But the pursuer says the contract is illegal because the defenders ran no risk. I do not understand that if it be true the defenders made a particularly good bargain, that is a ground for setting aside the contract. There is nothing in that argument. But the pursuer further says the contract was illegal because of the condition in the third head that there should be a ballot so many times a-year for the purpose of determining the bonds, the holders of which were to be entitled to certain loans. It is said that that makes the contract illegal because it amounts to a lottery. We heard a good deal about the Lottery Acts, but there was no citation of them.

Assuming this was a lottery, it does not thereby follow that the pursuer is entitled to succeed. I know of no Lottery Act saying that if anyone has paid money to a lottery he is entitled to get it back. On that matter, therefore, I also agree with the Lord Ordinary.

But it does not follow that even if one condition were illegal, the whole contract must go. I do not think so at all. Even if a contract contains a condition that cannot be enforced, that will not necessarily invalidate the whole contract.

LORD M'LAREN and LORD KINNEAR concurred.

The Court adhered.

Counsel for the Pursuer and Reclaimer— Orr-Hunter. Agent-T. M. Horsburgh, S.S.C.

Counsel for the Defenders and Respondents- W. Campbell — Chree. Agents Mackenzie & Fortune, S.S.C.

Friday, March 9.

SECOND

DIVISION.

[Lord Stormonth Darling, Ordinary.

COBB v. ROBERTSON AND OTHERS (COBB'S TRUSTEES).

Trust-Disposition -- Charitable Bequest Uncertainty-Direction to Pay to “Useful Benevolent and Charitable Institutions."

A truster directed his trustees to pay and apply the residue of his estate "to such useful benevolent and charitable institutions as they in their discretion may think proper, it being hereby declared that the decision of my said trustees, or the majority of them, in regard to said useful benevolent and charitable institutions shall be final and binding upon all concerned."

Held that the word "useful" was used to qualify both "benevolent" and "charitable," and that the bequest was not void through uncertainty,

Opinion (by Lord Stormonth Darling) that a direction to trustees to give trust funds to "useful institutions" would not be void from uncertainty. David Cobb, who resided at Taypark near Dundee, died in the month of January 1892, leaving a trust-disposition and settlement dated 2nd October 1883, whereby he conveyed to trustees his whole means and estate, heritable and moveable. After providing for payment of his debts, and any legacies he might thereafter leave, he directed his trustees, in the event of his sister Miss Matilda Johnston Cobb surviving him, to pay over to her during her life the free yearly income arising from the residue and remainder of his means and estate. The testator then directed his trustees as follows:-"Upon the death of the survivor of me and the said Matilda Johnstone Cobb, and after answering the foregoing purposes, I farther direct my said trustees to pay and apply whatever residue and interest thereon may remain in their hands to such useful benevolent and charitable institutions as they in their discretion may think proper, it being hereby declared that the decision of my said trustees, or the majority of them, in regard to said useful benevolent and charitable institutions shall be final and binding upon all concerned."

Miss Matilda Johnston Cobb predeceased the testator.

In September 1892 Peter Cobb, one of the testator's next-of-kin, brought an action against the trustees to have it declared that the bequest of the residue was void, and that the residue fell to be divided among the testator's next-of-kin, according to the rules of intestate succession, and to have the defenders ordained to give an account of their intromissions as trustees.

The pursuer averred that the bequest of residue was vague, indefinite, and uncer

66

tain, and its terms are in law impracticable and incapable of being carried out."

The defenders pleaded-" (2) The pursuer's averments are irrelevant. (3) The residuary bequest in the said trust-disposi tion and settlement not being invalid on the grounds stated, the defenders should be assoilzied."

Upon 2nd February 1894 the Lord Ordinary (STORMONTH DARLING) sustained the second and third pleas-in-law for the defenders, and assoilzied them from the conclusions of the summons.

"Opinion.-The late Mr David Cobb of Taypark, near Dundee, who died in January 1892, left the residue of his estate, estimated at £60,000 or thereby, to be paid and applied by his 'trustees' to such 'useful benevolent and charitable institutions as they in their discretion may think proper, it being hereby declared that the decision of my said trustees or the majority of them, in regard to said useful benevolent and charitable institutions, shall be final and binding upon all concerned.'

"Mr Peter Cobb, alleging himself to be a second cousin and one of the next-of-kin of the testator, has brought this action against the trustees to have it declared that the bequest is void for uncertainty. The defenders refused to admit his relationship, and a proof was allowed, in which the pursuer succeeded in establishing his title to sue. It is, therefore, now necessary to decide the legal question.

"The pursuer cannot point to any Scottish decision in support of his contention, but he cites a number of English authorities which, if I understand them aright, establish the rule that a bequest for distribution at the discretion of trustees for any other than charitable purposes is void, and that where other purposes of an indefinite nature are named along with charitable purposes, so that the whole might be ap plied for either purpose, the English courts will not sustain even the charitable part of the bequest, which if it stood by itself would be good. The reason for this somewhat artificial rule seems to be that as the execution of every English trust is held to be under the control of the court, it must be of such a nature that the court itself can, if necessary, execute the trust. It can execute a trust for charitable uses, because the word 'charitable' has in England a well ascertained legal meaning (much wider than its natural meaning), derived from the Statute of Elizabeth and the decisions of the Court of Chancery thereupon; but other words, though of similar import, are held to constitute too vague a direction for the court to administer, and if for the court, so also for trustees.

"I refer particularly to the judgment of Lord Eldon in Morice v. The Bishop of Durham, 1804, 10 Vesey, 521, now reported in 7 Revised Reports, 232.

"It seems to me that there is no such rule in Scotland, and that the reason for it does not exist. Our courts do not supervise or execute trusts, and the recent case

of Robbie's Judicial Factor v. Macrae, 20 R. 358, shows that they will not transmit to a judicial factor appointed by them the discretion as to the selection of objects of the testator's bounty, which had been validly committed by the testator to his own trustees.

"Nothing can illustrate more strongly the vital distinction between the two systems than to contrast the English cases of Williams v. Kershaw, 5 Cl. and Fin. III., and in re Jarman's Estate, 8 Ch. Div. 584, with the judgments of the House of Lords, sitting as a Court of Appeal from Scotland in Hill v. Burns, 2 Wilson and Shaw 80, and Millar v. Black's Trustees, 2 Sh. and Maclean 866. In Williams v. Kershaw Lord Cottenham, when Master of the Rolls, held that a direction by a testator to his trustees to apply the residue of his personal estate to and for such benevolent, charitable, and religious purposes as they in their discretion should think most advantageous and beneficial, was void for uncertainty. In Jarman's Estate, Vice-Chancellor Hall decided that a direction to trustees to apply the residue to any charitable or benevolent purpose they might agree upon was indefinite and inoperative, and therefore bad. But in Hill v. Burns the House of Lords sustained a bequest whereby a testatrix appointed the residue of her estate to be applied by her trustees in aid of the institutions for charitable and benevolent purposes established or to be established in the city of Glasgow or neighbourhood thereof, coupled with a declaration that they should be the sole judges of the appropriation of the residue for these purposes. Still more significantly, in Millar v. Black's Trustees, the House decided that a bequest to trustees to apply the residue to such charitable and benevolent purposes as they might think proper, was not void for uncertainty. In Crichton v. Grierson, 3 Wilson & Shaw 329, Lord Lyndhurst stated the rule of Scots law in perfectly general terms. That was a case where the testator declared his wish to be that the residue should be applied in such charitable purposes and in bequests to such of his friends and relations as might be pointed out by his wife, with the approbation of the majority of his trustees. Lord Lyndhurst, in holding the direction to be good, stated (at p. 338) the question to be whether it is competent for the disposer by a deed of this description to point out particular classes of persons and objects which are intended to be the object of his favour, and then to leave it to an individual or a body of individuals after his death to select out of those classes the particular individuals or the particular objects to whom the bounty of the testator shall be applied?' And he added, 'I apprehend that according to the authorities in the law of Scotland it is quite clear a party has this power.' Towards the end of his opinion (at p. 343) his Lordship took occasion to say that in respect to bequests for charitable purposes the law of England was more strict than the law of Scotland.'

"It seems to me impossible, in the face of these decisions, to say that this bequest is void. The testator here has been more precise than some of the testators in the cases I have mentioned, because he does not content himself with the phrase 'useful benevolent and charitable purposes'; he points out useful benevolent and charitable institutions' as the objects of his bounty. The trustees have a free hand in selecting the particular objects, but they must be institutions,' which implies a definite organisation and some element of permanence. Except for the introduction of the word 'useful,' the case is precisely ruled by Millar v. Black's Trustees. Now, does the word useful' vitiate the whole bequest? I think not. Suppose the expression 'useful institutions' had stood alone. They are a class of objects as to which no doubt opinions might widely differ, but I know of no authority in the law of Scotland for saying that a testator might not delegate to his trustees the duty of selecting from among that class, according to their own opinion of what constituted a useful institution. Some fanciful illustrations were put by the pursuer's counsel of institutions which most men would admit to be useful, but which would not be appropriate recipients of a testator's bounty. Similar things might be said of every discretionary trust, because all discretion is liable to be abused. This Court has power to restrain abuses in the administration of trusts at the suit of the testator's next-of-kin, or perhaps of the Lord Advocate, however wide the discretion of trustees may be. But we are not to anticipate the abuse of discretion. It seems to me that the word useful' may to some extent be explained and controlled by the company in which it stands, but that even by itself, it sufficiently designates a large class of institutions to which the testator's bounty might properly enough be applied, and which might not in strict language be covered by the words 'charitable' or benevolent.' The word 'charitable' in England, according to the definition in the Statute of Elizabeth, covers schools of learning and scholarships in universities, and it has been held to extend to such bodies as the British Museum and the Geographical Society, and to such purposes as public religious instruction (Jarman on Wills, 208-9). These are purposes which might not fall within the ordinary meaning of 'charitable,' or even of "benevolent,' and it would be a singular result if the freer scope of the law of Scotland with respect to bequests of this kind were found to leave less latitude to testators than the narrower rule of the law of England. But while my own opinion is that the trustees might allocate the testator's money to institutions which are useful without being either charitable or benevolent, there is another construction of the clause which would remove all difficulty on this head. I mean the construction that any institution receiving benefit must be at once charitable, benevolent, and useful. Such a construction is by no means a forced one, and at all

events I should prefer it to holding that there was intestacy.

"With regard to expenses, I think the pursuer ought to have his expenses in connection with the proof, because he was successful in proving his propinquity, and it was only the extreme caution incident to the position of the defenders as trustees which led them to deny it. Quoad ultra I shall follow the example of this Court in M'Lean v. Henderson's Trustees, 7 R. 601, by finding no expenses due to or by either party.'

The pursuer reclaimed, and argued-The bequest could not stand. It was admitted that both in Scotland and in England a bequest to trustees allowing them to distribute the funds at their disposal among "charitable" institutions was good, but this rule applied where the direction was to divide the funds among "charitable" institutions only - Morice v. The Bishop of Durham, March 20, 1805, 10 Vesey 521, and 7 Revised Rep. 232; Millar v. Black's Trustees, July 14, 1837, 2 Sh. & Maclean, 866. It was also admitted that the addition of the word "benevolent" made no difference, all charitable institutions being by their nature benevolent, but the addition of the word "useful" rendered the bequest null upon the ground of vagueness, because there might be many institutions which were useful, and yet were not charitable. The words must be read disjunctively and not collectively. [LORD RUTHERFURD CLARK-I suppose I am bound to read this will so as to give effect to the desire of the truster, and if I find two meanings of the words possible, one of which enables me to give effect to the will, and the other destroys it, must I not take the view which will enable me to give effect to the testator's purpose? Here the words could be read "a useful benevolent institution," or "a useful charitable institution."] No doubt in the usual case a benignant construction was given to testamentary settlements, but where there were two meanings possible, a natural meaning and a strained one, the Court was bound to take the natural one. No benignant construction, however, was given to wills where the testator did not take the trouble to make a will for himself, but had merely handed over all his property to trustees to dispose of in their discretion. 2. The Lord Ordinary was wrong when he said that a bequest to "useful institutions" would be good by the law of Scotland; it was only "charitable" institutions that were so favoured-Williams v. Kershaw, December 11, 1835, 5 Cl. & Fin. 111; Ellis v. Selby, February 1, 1836, 1 Mylne & Craig, 286; in re Sutton, February 10, 1885, L.R., 28 Chan. Div. 464; in re Jarman's Estate, April 8, 1878, L.R., 8 Chan. Div. 584; Sutherland's Trustees v. Sutherland's Trustee, July 6, 1893, 20 R. 925; Magistrates of Dundee v. Morris, &c., May 1, 1858, 3 Macq. 134; Kendall v. Granger, July 2, 1812, 5 Beavan, 300; Vesey v. Jameson, November 19, 1822, 1 Simson & Stuart, 69; Tilden v. Green,

October 27, 1891, 44 Albany Law Journal 368.

The respondent argued - This bequest was not void from uncertainty. The English cases which the pursuer cited were not in point, because in the law of England "charitable" bequests were construed to include only a certain number of institutions which were enumerated in the Act of Elizabeth, as that Act had been interpreted by the English Court-Black's Trustees v. Miller, February 23, 1836, 14 S. 555. There was no such restricted meaning in Scotland. The law in this country was that a testator might select certain classes of objects which he wished to benefit, and leave it to the discretion of his trustees to choose individuals out of this class. Much broader words than those here had received effect-Kelland, &c. v. Douglas, November 28, 1863, 2 Macph. 150; M'Lean v. Henderson's Trustees, February 24, 1880, 7 R. 601.

At advising

LORD JUSTICE CLERK-The question here is whether a bequest to trustees, with directions to them to apply the amount to "useful benevolent and charitable institutions" is void from uncertainty. There can be no doubt that a bequest which directs trustees to apply its amount for the benefit of charitable institutions would be valid. The cases leave that matter in no uncertainty. But it is contended that the use in this testament of the word "useful" renders the bequest void, because useful is a vague expression, and that it is separable from the other expressions. The contention is that the three expressions, useful, benevolent, and charitable, are not to be read together, but to be read as alternatives to one another as if they were disjoined by the word "or." I do not think that they should be so read if a reasonable reading can be found when they are read as they stand, joined by a copulative and not a disjunctive. And I am of opinion that the words can, without any straining, and rather in accordance with their natural sequence, be read so as to refer to institutions of a benevolent and charitable character, such as the trus tees may select, they being called upon in doing so to consider and form an opinion as to whether the institutions being benevolent and charitable, were also doing useful work in the community. The words "benevolent and charitable" may be held to form one expression in which the words are truly used as exegetical of each other respectively, the word "useful" overriding both. That is my view of how this phrase may be read and should be read. So reading it, the contention that this bequest is null from uncertainty must fail, and I think that your Lordships should adhere to the Lord Ordinary's interlocutor.

I do not go into the matter more fully, or into the consideration of the question whether, if the words of the bequest were to be read as disjoined, the request might not be valid, for I have had an opportunity of reading an opinion prepared by Lord Trayner in which I entirely concur.