By far the most common instance of a trust is
where a definite sum of money, or certain definite funds, are bequeathed by a testator for behoof of certain persons, on conditions clearly specified. Very common, also, are trusts created during the lifetime of the founders, such as marriage trusts or trusts for behoof of creditors. And I think it may safely be affirmed that the immense mass of legal decisions or precedents on trust law with which the Law Reports are crowded has accumulated through the administration or maladministration of trusts such as these. One thing, at least, all such trusts have in common,—viz., the purposes and objects of the trust are laid down by the person who gives or bequeaths the money, and, in testamentary trusts at any rate, his presumed intention is, in case of doubt, the paramount rule of construction.
1 have no Law Reports at hand, and the matter is not made absolutely plain from the report of the present case; but it seems pretty clear that the Craigdallie case, which so largely influenced the judgment of the House of Lords, was a case in regard to a trust of the above nature. At any rate, it was about a definite subject, " a house," apparently built or purchased at a definite time for a definite body of Christians. In such a case, the Lord Chancellor's rules admit of simple and easy application. " The Court has simply to ascertain what was the original purpose of the trust The question is, what were, in fact, the views held, and what the founders of the trust thought important." But was it fair or reasonable to take such rules and apply them, in the strictest possible way, to the case of the Free Church, where (1) not the whole, but only a fraction, of the funds in dis- pute were contributed by the nominal "founders of the trust " ; (2) the real "founders of the trust" were people, most or many of them living to-day, who, and not certain " pious donors " dead and gone long ago, had, within a comparatively recent date, given the great bulk of the trust funds ; and (3) the views of the real founders had undergone a very natural and legitimate course of development since the inception of the trust? And what are we to make of a sentence like this, in the opinion of the same Judge?—" In examining this question one has to bear in mind not what we or any other Court might think of the import- ance of the difference" (in doctrine), " but what the donors of the trust fund thought about it, or what we are constrained to infer would be their view of it if it were possible to consult them." Or this ?—" There is nothing in calling an associated body a Church that exempts it from the legal obligation of insist- ing that money given for one purpose shall not be devoted to another. Any other view, it appears to me, would be fatal to the existence of every Nonconformist body throughout the country,"—sentiments with which the generous donors who sat and listened must have heartily agreed. I am well aware that it is contended that the actual origin of the trust funds has nothing to do with the objects of the trust, but still I would fain hope that ignorance on this subject was at the root of one of the most extraordinary decisions in the history of the law. So far as I am aware, no inquiry was made by the Court as to the actual amount of the millions in dispute—including of course the value of the buildings—or the approximate dates at which the funds were collected.
Might I be allowed to add a word about possible future developments ? One of the most interesting features in the present ecclesiastical situation in Scotland lies in the fact that an earnest, and even a passionate, desire for a wider union of
Presbyterians has been lately expressed by some of the most highly respected and weightiest men in the Established Church. It is scarcely credible that men like Dr. Donald Macleod, Dr. McMurtrie, or your correspondent Dr. Hunter would have expressed themselves as they have done had they not some definite plan in view, and were they not prepared to make some sacrifice towards this great end. Sometimes I dream that I see the Church of Scotland voluntarily resigning the shadow of State connection for the substance of Presbyterian unity. Is it possible that the dream may come true ! And would the price be greater than that paid by the Free Church, first in 1843, and again in 1904 ?
—I am, Sir, &c., A. G. DENHOLM-YOUNG.
10 liforningside Place, Edinburgh.
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