GEORGE DUNDAS v JOHN DUNDAS (Court of Session)

The deceased Miss Agnes Dundas, after bequeathing sundry legacies to different persons, terminates her will thus:

I leave and bequeath to my nephew, John Dundas, the sum of L.200 sterling, with power to see this will executed.’

An action was brought by Mr George Dundas, nephew, and one of the next of kin of the testatrix, to have it found that the foresaid bequest was null and void, in respect of the uncertainty as to its objects, and that the residue, which amounted to about L.500, belonged to the pursuer and to the other next of kin.

The Lord Ordinary (10th Dec. 1836) pronounced an interlocutor and note, by which he ‘finds, that the bequest to ‘charities’ is not void on the ground of uncertainty or indistinctness, but does, when combined with the terms of the appointment of the defender as executor, import a discretionary power on his part to select the charities on which the benefit is to be conferred: Therefore, and to this extent, sustains the second defence, and assoilzies the defender from the conclusions of the action; but finds no expenses due, and decerns.’

Note .—‘There seems no room here for the objection of uncertainty . That objection applies when it appears that the testator had some particular object in view, but has failed either in defining that object, or in specifying some of the conditions essential to its precise entertainment. This last, for instance, seems to have been the ground of the decision in the case of Ewen v. The Magistrates of Montrose, ( W. & S. Ap. Cases , iv. 346,) referred to by the pursuer.